Citation Numbers: 35 Barb. 616
Judges: Mullin
Filed Date: 11/4/1861
Status: Precedential
Modified Date: 1/12/2023
To entitle the plaintiffs to recover in this case against the defendant, they must prove a contract, express or implied, between them and the defendant, by which the one party agreed to purchase and the other to sell the mantels which are the subject matter of this suit, and that they have been delivered in accordance with the contract. The plaintiffs do not rely on an implied agreement. They undertook to prove before the referee an express contract, and the prominent question for us, on the appeal, is whether such a contract is proved.
“Warren Beman, Esq.,
Dear Sir: I want mantels for my house precisely like those ordered by Mr. Burton from Messrs. Murphy & Dimond. Also, tiling. Will you have the. same ordered at once. Tours, &c.
L. W. Winchester.”
It will be perceived that this order,' if such it is, is not addressed to the plaintiffs, but to Beman. It is not therefore an order on the plaintiffs, and not of itself evidence of a contract to purchase and pay for the matéis. If we are to give any effect to this paper, it can only be as evidence of the authority of Beman to purchase the mantels. Was it the intention of the defendant, when he wrote this document, to give to Beman any such authority ? Most clearly not. ¡No reason or motive can be assigned for so doing. If, then, the defendant can be held bound by the act of Beman it must be because, by the reasonable construction of the writing, Be-man is constituted his agent, or the latter is estopped from disputing his authority. There is nothing ambiguous in the terms of the writing. Bead in the light of the contract between the defendant and Beman, it is only a request to Be-man to procure the mantels to be prepared at an early day. There is nothing in the language which was calculated to
I can find nothing in the subsequent acts of the defendant which, fairly interpreted, manifest any intent on his part to become bound for the mantels, or that the plaintiffs intended to hold him responsible, before the irresponsibility of Beman was ascertained. The only circumstance which seems to me of any significance is the payment of the money. But I do not find that the defendant ever paid a penny to the plaintiffs, directly, nor did he hand it to Beman to be carried to them as money paid by him. On the contrary, Beman says he paid the money, taking the plaintiffs’ receipt therefor, and gave his own receipt to the defendant for the sums delivered to him. To estop the defendant from denying the authority of Beman, he must be shown to have done something which would justify the plaintiffs in treating Beman as his agent, on which the plaintiffs acted. Ho such thing is proved. If the plaintiffs have acted on the idea that the defendant was the person to pay them for the mantels, it was by reason of their omission to make those inquiries which every prudent man should make in dealing with a person professing to act as another’s agent. I cannot resist the conclusion that, if Beman had continued solvent, the defendant would never have been called on for pay for the mantels. But his insolv
For these reasons, without examining the other questions raised on the argument, I am of the opinion that the .judgment of the referee should be reversed and a new trial ordered, costs to abide the event.
The referee having once passed upon the facts in this case, and as the judgment is reversed by reason of the erroneous findings of fact by him, it is no more than just to the defendant that the case should go to another referee, whose mind has acquired no bias or prejudice against his side of the case. In appointing a new referee, we must not be understood as imputing any improper prejudice or bias to the referee who has already heard this case. But a new referee is appointed on the same grounds, and for the same reasons, which require a new jury to re-try a cause in which a verdict has been had and a new trial ordered. Ho lawyer would consent that the first jury, or any members of it, should sit at the second trial.
A new trial is therefore ordered; costs to abide the event.
Clerke, Sutherland and Mullin, Justices.]