
    V. Loewers Gambrinus Brewing Co., Appellant, v. Simon Friedman, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Gift—Consideration — Ratification, by corporation.
    Where a saloon-keeper is given a new bar by a brewing company, in ' consideration of his continuing to trade with that company, of which he was an old customer, and also of his ceasing to trade with another company which had promised to give him a new bar if he would trade with it, the transaction is not a naked gif;, but is a contract made upon a consideration; and where it further api ears that the transaction was had with the selling agent of the brewing company and -with its treasurer, and that the corporation subsequently enjoyed, the trade of the saloon-keeper for a period of a. year, there is a sufficient ratification,. upon the part of the brewing company, to pass to the saloon-kepeer the title to the new bar and to estop the corporation from maintaining an action to recover it from him.
    Appeal from a judgment of the justice of the Eleventh District Court rendered upon the verdict of a jury. The action was for the recovery of personal property, namely, one walnut bar of the value of $160, alleged to be the property of plaintiff, and to be wrongfully detained by defendant. The answer was a denial, and an allegation of ownership in the defendant. Verdict and judgment for defendant. Plaintiff appeals.
    C. J. G. Hall, for appellant.
    Forster, Hotaling & Klenke, for respondent.
   Daly, P. J.

The defendant, a saloon-keeper, who had dealt for a long time with the plaintiff, a brewing company, proposed, as consideration for continuing to take its beer, that it should give him a new bar. This was at first refused, but defendant, learning that another brewing company, in order to obtain his trade, had agreed to give him a bar, and that he had accordingly commenced to deal with that company, hastened to apprise him that it would give him the bar, procured the necessary acquiescence of the second company to his resumption of dealings with the plaintiff, removed his old bar and put in another at a cost of $160, and supplied him with beer for about a year thereafter. When he subsequently withdrew his trade, this action was commenced to retake the bar, on the ground that it was a mere gift which the officers of the company had no authority to make and no title to the property passed to defendant. The transactions were had by defendant with the treasurer of the company and its salesman and collector, acting under -that officer’s authority, • according to the evidence on defendant’s behalf, which the jury credited in preference to the denials of plaintiff’s witnesses.

The contention of appellant is that the evidence on defendant’s part shows that there was a naked gift of the property by plaintiff’s agents. This is a misapprehension, doubtless arising in part from defendant’s speaking of the new bar as a present; ” but that expression only indicates his understanding that the fixture was to become bis without charge. The facts show a consideration for the promise to give him the bar, which made the agreement en-forcible1 in case of breach, and which is effectual'to prevent rescission, or repudiation, after it has been executed. There was" consideration, in the agreement of defendant to resume his trade with plaintiff, which he had discontinued; and. there was consideration in his relinquishing, at plaintiff’s request, the benefit of the contract he had made with the other company, under which he was. to get'a new bar in consideration of giving it his trade.

As there was no gift of this property, there can be no dispute upon the evidence as to the authority of the treasurer, or the collector, to make a legitimate contract with the defendant to secure or retain his custom. Any arrangement as to price, or terms which involved a concession would to that extent be a gift of the corporate property, but’one which, its agents might lawfully make, within the scope of their agency. According to the treasurer’s testimony, it was the duty of the collector “ to protect and keep the trade of the various customers and to secure new trade, if possible; ” and the collector testified that his specific instructions from the treasurer were to “ hold'Friedman by all means,” and to “ give him a bar and we will make a present of it to hold the customer.” All that was done by this agent was r sported to the treasurer, and it is to be assumed that the latter, as yas his duty, reported to the corporation, his principal. Bank of U. S. v. Davis, 2 Hill, 464; Meehan v. Forrester, 52 N. Y. 277. Ratification of the agent’s acts will be presumed, since the company received the benefit of it. Davies v. Harvey S. Co., 6 App. Div. 167; Whitney A. Co. v. Barlow, 63 N. Y. 62; Rider L. R. Co. v. Roach, 97 id. 378; Seymour v. S. F. C. Assn., 144 id. 341; Bath G. L. Co. v. Claffy, 151 id. 24; City of Buffalo v. Balcom, 134 id. 532.

■ The rulings of the justice were correct. There was no error in admitting the written memorandum of the agent which merely embodied the verbal arrangement which he was authorized to make. It was not in the nature of a declaration or admission.

Judgment, affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  