Tucker v. Woolsey , 6 Lans. 482 ( 1872 )

Ingraham, P. J.

The appeal in this case is from a judgment before a referee, and applies to some items of an account which must be separately considered.

The plaintiffs were merchants in Paris, and had accounts and dealings with the defendants in New York. They sent an agent to New Yorlc to look for orders in their business. They sent with him seven large trunks filled with goods, and gave him a letter of introduction to the defendants, asking for him their kind services as regards advice. Another letter was afterward sent, saying to defendants, “ any assistance or advice you may render him in the prosecution of his business, will be appreciated.” Two letters were afterward written, each asking defendants to advance the agent fifty dollars. On his arrival here, the agent called on defendants. The defendants advanced money to pay the duties. This was approved of by the plaintiffs. The defendants then, at the request of the agent, rented him an office in which to store and exhibit his goods. The plaintiffs deny the authority of the agent to hire. The referee allowed this item. There can be no doubt that the principal is liable for the act of his agent, so long as he acts within the apparent scope of his authority. The agent came with seven large trunks filled with goods. They were for exhibition and sale. Some place was necessary, either by renting a room for the purpose or by hiring storage. When the plaintiffs asked of defendants assistance and advice in the prosecution of his business, they gave them reason to suppose that such assistance and advice was in regard to the care and disposition of the property he had to sell, and furnishes ample grounds for supposing that the agent had authority to provide a place in which the goods could be stored and exhibited. It was a matter absolutely necessary for the care of the property'of the plaintiffs, and fully justified the finding of the referee as to the item for rent.

Another item objected to on this appeal is as to moneys advanced to the agent beyond the $100 authorized in the two letters of the plaintiffs. It is clear that no authority was given to advance money to the agent for his expenses, and if such items appeared in the accounts they should have been rejected. The agent, as he sold the plaintiffs’ goods, deposited the money with defendants, because he had no bank account. As he would want to use it, he reserved the right to draw it as he had occasion. There was no direction given that this money should be paid by the agent to the defendants. They were justified in taking it as a special deposit, and in paying back that deposit to him as he from time to time required. The defendants were under no obligation to hold it for the plaintiffs, and to the amount of moneys so received they are entitled to be credited for an equal amount refunded. For any advances made beyond such deposits, and the sums specially ordered, there was no authority for the advance, and the same should be disallowed.

The very fact that the plaintiff did not authorize the advance of moneys to the agent for duties and expenses, leaves it to be supposed that the intent was that he was to use the moneys received by him for the sale of goods, as much as was necessary for his expenses, and justified the repayment by the defendants to the agent of the moneys he so deposited with them.

The remaining item is the money advanced for a passage ticket to return home. The testimony shows that Dréux produced to defendants a letter from the plaintiffs, and which was read by Woolsey, and which stated that the defendants should furnish him with a return ticket. , The objection to this evidence was not well taken. It was in proof that Dreux kept the letter, and that he was out of the country. This was sufficient evidence to warrant paroi proof of its contents. The denial by Andrews of having written such a letter, made it a question of fact for the referee, with which we cannot interfere.

Our conclusion, therefore, is that no error was committed by the referee, except in allowing for moneys advanced beyond the amount deposited with the defendants, and such excess should be deducted from the amount allowed to the" defendants, and the plaintiffs should have judgment for that sum, with interest.

If the defendants so consent, and file a stipulation that plaintiffs may have judgment for the amount of such excess and interest, the present judgment may he vacated and such judgment maybe entered; if not, a new trial is ordered, costs to abide event.

Ordered accordingly.