Thompson v. Marseillaise French Baking Co.

Guy, J.

This action was brought to recover for architects ’ commissions.

The answer was a denial of all the material allegations of the complaint.

Plaintiff Frohling testified he was informed by one Devernoy, an employee of defendant, that defendant was going to build a bakery at a cost of $125,000, and Devernoy asked him to prepare plans; that Devernoy brought defendant’s president to plaintiffs’ office, where defendant’s president, who could not speak English, was represented by Devernoy as his interpreter, and Devernoy then stated defendant’s president approved the plans, with some small alterations. Other witnesses for plaintiffs corroborated Frohling as to what the interpreter represented defendant’s president as saying at the interview in question. Defendant’s president testified that he told plaintiffs he would not bind himself to any engagement if they saw fit to draw plans; that plaintiffs must" take their chances if they prepared any sketches. The question as to whether or not Devernoy while in the defendant’s employ correctly interpreted the president’s words was a question for the jury to determine. Defendant’s president also testified that plaintiffs’ price was too high, and whatever or whoever made the arrangement for the plans made' it with another architect.

Defendant’s president was asked as to whether defendant had ever owned the real property upon which the building was erected; had ever erected or taken any steps to erect a building thereon, or whether he was ever authorized by defendant to erect the building.' This evidence was all excluded -under plaintiffs’ objection and defendant’s exception. Further testimony as to who, other than the defendant, did own the lots and put up the building thereon, was also excluded. This was prejudicial error. Proof of physical facts contradicting the gravamen of the plaintiffs’ case is admissible. Snyder v. Sloane, 65 App. Div. 543, 545 ; Stone v. Cronin, 72 id. 565. While there is a serious conflict both in the direct proof and in the inferences to be drawn from the proof, the exclusion of all proof of physical facts inconsistent with the determination of the vital issue upon which the prevailing party recovered is error, for which either a new trial or a modification of the judgment appealed from must.be granted.

No proof was offered by plaintiffs that the defendant company owned the land or ever erected a building thereon. The evidence showed that the capital of the defendant company was about $10,000.

‘ ‘ Persons dealing with the officers of a corporation, or with persons assuming to represent it, are chargeable with notice, of the purpose of its creation and its powers and with the authority, actual or apparent, of its officers or agents with whom they deal.” Wilson v. Kings Co. E. R. R. Co., 114 N. Y. 491, 492. Prima facie, the president of a $10,000 corporation could not, without express authorization of the board of directors, bind the corporation by contracts relating to the erection on another’s land of a building to cost many times the amount of the-total capital stock of the corporation, which building, in the absence of an express agreement to the contrary, would become the property of the owner of the land. McIntosh v. Rector, 120 N. Y. 7, 12. The making of such contracts would not be within the scope of his general authority as president.

Page and Whitaker, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.