Howard v. Norton , 1873 N.Y. App. Div. LEXIS 67 ( 1873 )

By the Court, Mullin, P. J.

It was competent for the plaintiffs to prove, conditionally, that in the negotiation for the purchase of the apples, Smith said he was buying for the defendant. 1st. Because, if the purchase was ratified, it was a part of the res gestee; and 2d. Because without proof that Smith represented himself to be an agent, there could be no ratification of the purchase by the defendant.

If Smith did not assume to purchase as agent, he alone was liable for the apples, and the defendant could not be made liable for the price without a promise to pay it, supported by a valid consideration.

When an agent assumes to act for another, and that other, with knowledge of what the assumed agent has done, ratifies and adopts the act, he is himself liable. (Paley's Agency, 171, note a.)

But the statement of an agent cannot be received to prove his agency, so as to bind his principal. (1 Cowen & Hill's Notes, 189, n. 187.) When, therefore, it is proposed to prove that a person represented himself as agent of another, the evidence,, if objected to, is incompetent for any purpose, except to prove that he so held himself out to the person with whom he dealt. Care should be taken to guard the jury against considering such a representation as evidence of the agent’s authority, until the ratification is proved.

In this case the representation to the plaintiffs was competent for the purpose above indicated. Being competent, the court was under no obligation to limit the operation of the statement of the agent, unless called on to do so by the counsel; and this was not done during the trial, nor in the charge.

The receipt for the apples, signed by Smith as agent for the defendant, stands on a somewhat different footing. It was not a part of the negotiation which resulted in the sale, when, if ever, the agency should have been and was disclosed. A pretence of agency in October, when the sale was in fact made in August, was not a part of the res gestee, that is, of the sale, so as to make it competent as such.

The act of the agent in giving the receipt for the apples must have been admitted, to prove his authority to bind the defendant. The objection that the receipt was'given without authority was distinctly made, and as distinctly overruled.

If the receipt by the agent of the apples was also ratified, the act of giving the receipt was also ratified, so that, it seems to me, the evidence of the acts and declarations of Smith were, if ratified, properly received. The jury undoubtedly found that they were ratified.

I cannot discover any ground upon" which the representations by the agent to other persons of whom he bought apples, that he was the defendant’s agent, were admissible. Such evidence must have influenced the jury in passing on the question of authority, and for that purpose it was wholly incompetent.

It has been held that an agent’s authority may be inferred from acts of a kind similar to that done in the case in which the proof is sought to be made. But the acts from which the inference of authority is sought to be drawn, must be acts done under authority of the principal. Authority cannot be inferred from any number, however large, of unauthorized acts. The declaration of the agent to the witness not being shown to be authorized, furnishes no proof of authority, even were an agent’s declaration to third persons competent in this action.

It is difficult, if not impossible, to ascertain from the decisions of the Court of Appeals, whether a receipt in full of a debt or claim may or may not be explained or contradicted by paroi evidence.

In Coon v. Knap, (8 N. Y. 402,) the plaintiff and her sister had been injured by the carelessness of the defendant’s driver, in upsetting a stage coach in which they were passengers. The defendant, while the plaintiff was suffering from her injuries,- offered her and her sister §40 in full for their damages, which was accepted, but upon the condition that if they did not get weE by a day named, it should not be in fuE. A receipt was drawn and signed, acknowledging the receipt of the §40 in fuE for damages, but nothing was said in it as to the condition. The plaintiff, not getting well by the time named, sued for her damages; the defendants put the receipt in evidence in bar of the action, and thereupon, the plaintiff offered to prove the paroi condition. It was, however, objected to, on the ground that the receipt was a contract, and not the subject of explanation by paroi. The objection was sustained, and the evidence rejected, on the ground that it was not competent to explain or contradict the writing.

In Filkins v. Whyland, (24 N. Y. 338,) and in Terry v. Wheeler, (25 id. 520,) receipts purporting to be in full payment for property purchased were held not to be contracts, and were therefore explainable.

In these cases the receipts were for money. It has been supposed that when the payment was in property other than money, a different rule prevailed, and the receipt was, in such cases, a contract, and not open to explanation or contradiction.

In Kellogg v. Richards, (14 Wend. 116,) the defendant offered in evidence, in an action for goods, &c., a note given by him to the plaintiff for the balance due them. On the back was endorsed by the plaintiff a receipt acknowledging to have received of the defendant the note of a third person for an amount less than the balance, as a compromise for the full payment of this note. The plaintiff offered to prove that when the note described in the receipt was taken, the defendant promised to pay the balance. This evidence was held to be incompetent. The taking of the note in full for the debt was held to be a valid accord and satisfaction.

In Buswell v. Poineer, (37 N. Y. 312,) the plaintiff sued for the price of lumber sold, and on the bills were receipts in these words: “ Rec’d payment by note, 3 months.” Another in these words: “Received payment of M. K. & Co.’s note, 4 months.” The plaintiff offered to contradict the latter receipt, by showing that the note therein mentioned was not received as payment, and the evidence was held competent.

It would not throw light on the question we are considering to multiply cases. From those cited, the following conclusions would seem to follow:

First. That a receipt for money, though it be said to be in full of the debt or demand upon which it is received, may be contradicted or explained by paroi evidence. (Ryan v. Ward, 48 id. 204.)

Second. A receipt for the note of a third person is explainable, unless it be stated in it that it is received in full payment of the debt or demand on which it was to be applied. (Bunge v. Koop, Id. 225.) This is the distinction between the cases of Kellogg v. Richards and Buswell v. Poineer, (supra.) How sound the distinction is, it is not for us to say. It strikes me as it did Justice Nelson in Kellogg v. Richards. He says: “ It is true there is not much of any ground for distinction between such a case (receiving property or other security) and one where a less sum of money is paid and agreed to be accepted in full.”

Considering the paper relied on by the defendant as defence, as a mere receipt for a given sum of money in full of the plaintiffs’ debt, it is explainable unless it is to be treated, on the evidence before us, as an accord and satisfaction. But if it is to be considered an accord and satisfaction, it caniiot be explained or contradicted by paroi evidence. (Kellogg v. Richards, supra.)

The payment in money of part of a debt concededly due, which is agreed to be taken in full payment, is not an accord and satisfaction. (Seymour v. Minturn, 17 John. 169. Dederick v. Leman, 9 id. 333.) When, however, the existence of the debt, or the amount of it, is disputed, and a sum of money less than the amount claimed is received in full payment, it is an accord and satisfaction. (1 Wait’s Pr. 1041, and cases cited.) So, too, when the note of a third person for less than the debt, or property other than money, or when additional security is received in satisfaction of the debt, it is an accord and satisfaction, and bars a recovery for any part of the residue of the debt. (Frisbie v. Larned, 21 Wend. 450.)

When, however, the debtor delivers to his creditor, and the creditor receives property at a price agreed upon by them, and the amount thus paid is less than the debt, it is not an accord and satisfaction, notwithstanding the creditor agrees to take it as full payment of the debt. Such a delivery of property is in law equivalent to the payment of so much money, and we have seen that the payment of a sum less than the whole debt is not a satisfaction, although it may be agreed so to be. It is only when property is received in satisfaction, without any price being agreed upon at which it is to be estimated between them, that it becomes a valid accord and satisfaction. Such a delivery and acceptance is held to be binding on the creditor, because the parties have the right to determine, for themselves, the value of property transferred from the one to the other; and when once it is determined, they are, in the absence of fraud, bound by such agreement.

[Fourth Department, General Term, at Syracuse, January 7, 1873.

Muh lin, Talcott and JS. D. Smith, Justices.]

There is no reason why, if parties so agree, a horse intrinsically worth but $50 may not be received in satisfaction of a debt of $1,000. Ho tribunal is authorized to repudiate the arrangement and fix a price on the animal for them.

The sheep that were delivered by the defendant to the plaintiff and others of his creditors, in part payment of the 20 per cent of the amount of their debts, were received at $5 per head. This operated only as' the payment of so much money; and being less than the debt, was not an accord and satisfaction.

Because of the reception of incompetent evidence, the judgment should be reversed and a new trial ordered, costs to abide the event.