Coyle v. City of Brooklyn , 1868 N.Y. App. Div. LEXIS 150 ( 1868 )

By the Court, J. F. Barnard, J.

There was but one question of fact between the parties, which has been determined by the jury. It was not disputed but that the contract of the city of Brooklyn with the plaintiff’s deceased husband had been executed. The defendant claimed to have paid the price of performance. This claim was supported by proof tending to show that William B. Lewis, who had received the money due upon the contract, was a partner therein with the plaintiff’s intestate, and also by evidence that the plaintiff had in fact authorized the defendant to pay Lewis. The evidence of the parties was in strict contradiction upon this issue, and the jury have found for the plaintiff. It must therefore be considered by this court as finally settled, that Patrick Coyle alone was the contractor, and that the plaintiff" did not give the city any authority to pay to, or William B. Lewis any authority to receive for her the payment foi; the work: It is conceded that Lewis did superintend the work; he was employed by the deceased contractor and continued to superintend the same under the plaintiff as his administratrix. The plaintiff brings her action upon the contract thus performed under the direction of Lewis. This presents the only remaining question, whether the plaintiff, by claiming under the contract, is not in law bound to ratify, and does not thereby ratify the acts of Lewis, and with them the unauthorized receipt of the money from the defendant. There are two classes of eases under which a principal is bound by the unauthorized acts of an agent; one where the principal, after knowledge of the unauthorized act of the agent, ratifies and consents to it, or where, after like knowledge, the principal fails to give notice of dissent within a reasonable time.- In this ease there is no proof of knowledge by the plaintiff of the unauthorized receipt of the 'money from the defendant by Lewis. The principle established by the other class of cases is, that a principal cannot be permitted to enjoy the fruits of a bargain without adopting the instrumentalities of the agent in consummating it. There is no ease in which this doctrine is maintained where the cause of action was not created by the unauthorized act of the agent; either a chose in action was purchased, or a, claim was canceled without authority by an agent for his principal and a new security substituted. If a principal sue upon a security bought without authority, or sue upon a substituted security given for one canceled without authority, he by reason thereof ratifies the act of the agent by which the securities were obtained. In this case the contract was made by the principal ; its performance entitles the plaintiff to payment. It must be paid to her or her agent duly authorized. It has riot been done; her right of action is made out. An unauthorized payment to Lewis cannot be ratified by her action upon this contract; she claims nothing by reason of such payment; she repudiates it entirely.

The judgment should be affirmed, with costs.