
    Albert Lilienthal and Philip N. Lilienthal, Respondents, v. The German American Brewing Company, Appellant.
    First Department,
    October 25, 1907.
    . Sale — authority of agent to modify contract — ratification.—questions - '■ . for jury.
    ■ In an action to .recover damages for the breach of a contract of sale it appeared that the plaintiffs had agreed to'deliver hops at twenty-seven cents’per pound. There was. evidence that the plaintiffs’ salesman represented to his principals that they were under "obligations to pay the buyer for services in bringing about other sales, whereupon the plaintiffs directed the sidesman to.dp what he thought best and he thereafter by memorandum in writing modified- the con- . tract to provide that the sale should be at the market price at time of delivery, not, however, to exceed twenty-seven, cents per pound. It also-appeared.that. some time before the date of delivery he reported to his principals the modification of the contract without objection being’then made on their part. The market price at time of delivery was below twenty-seven cents, but the seller insisted on that price, and on the- buyer’s refusal td accept the goods, sued for breach of contract.
    
      Held, that it was error to refuse to permit the defendant to go to the jury upon the questions as to whether the salesman had authority to modify the contract and whether in the absence of authority the plaintiffs'had not ratified the modification.
    Appeal by the defendant, The German American Brewing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of February, 1907, upon the verdict of a jury, and also from an order bearing date the 6th day of February,. 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Warren McConihe, for the appellant.
    
      Charles W. Coleman, for the respondents.
   Houghton, J.:

In the year 1904 a salesman óf the plaintiffs, who are copartners, bargained with defendant for the purchase of a carload of hops of the growth of 1905, to be delivered after January 1, 1906, at twenty-seven cents per pound.

By mutual memoranda, signed by the plaintiffs and defendant, this bargain was confirmed. Upon the salesman’s return to plaintiffs’ place of business, he reported to the plaintiffs that the president of the defendant had been largely instrumental in enabling him to sell two other carloads of hops and that , the plaintiffs owed some kind of compensation therefor. Thereupon one of the plaintiffs told the salesman that he himself was capable of looking after the matter and that he left it entirely to him to-do what he thought best. On the salesman’s next visit- to the defendant’s place of business, in adjustment and satisfaction of this obligation of plaintiffs to defendant, by memorandum in writing in plaintiffs’ name signed by himself, he modified the contract for the purchase of the carload of hops, by providing that the purchase price should be at the market price at the time of delivery, not to exceed, however, twenty-seven cents per pound. - •

When the time of delivery arrived the . price of hoj>s was much below twenty-seven cents. The defendant offered to take them- at the then market price, and- the plaintiffs insisted that if delivered they should' be at twenty-seven cents per pound; The defendant refused to-accept them at -that price, claiming'that the contract had been properly modified, and. the plaintiffs brought- this action to recover the damages which they claim to have sustained.

The court refused to permit the; defendant to go to the jury upon the question-as-to whether or not the salesman had authority to modify defendant’s contract, or, if he -had no authority, whether plaintiffs had. ratified his act of modification, and submitted to -them only the question as to how many pounds of hops a carload contained, instructing them,, when that was ascertained, to find ■ a ver- . diet for plaintiffs for the-difference between.the market price proven and twenty-seven cents.

We think the court erred in refusing to submit to the. jury the question of the salesman’s authority to modify the contract; and if he had no such authority, whether .plaintiffs did not ratify his act,

There was no dispute that the plaintiffs told the agent to settle the matter of the. compensation, of defendant for aiding in the sale of two carloads of hops in'. such manner as he saw fit.'■ Instead of agreeing to .pay á sum of 'moneys or arbitrarily reducing the price of the carload of hops which defendant had bargained for, he agreed that the defendants need pay only the market price prevailing at. the time they were to he delivered. ■ 'Under the then condition of the hop market it might -properly be said that- this was a reasonable bargain and one of wdiich-the'plaintiffs could not complain.-

.Indeed, on the proof - as it stood .upon the trial the-defendant might well have asked for a direction of a verdict in its favor.

In addition to this undisputed, authority given by the -plaintiffs to the salesman to adjust the .defendant’s claim against them, the salesman testifies that he reported to the plaintiffs "what he had done, at some'period before any dispute arose.;, and the' secretary of the defendant testified that in. Uovémber, 1905, he called-plaintiffs’ attention to the fact that defendant’s order for hops had been modified,. Qn thi§ latfer occasion plaintiffs insisted upon settling other matters of difference between themselves and the defendant before taking up the modification to which their attention was then called.

If plaintiffs knew what their agent had done, and made no timely objection to it, the jury might find that they ratified his act, although it was originally unauthorized.. The court erred in refusing to submit to the jury the'questions requested by the defendant.

The judgment and -order must be reversed and a new trial granted, . with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Lattghlin and Clarke, JJ., concurred.

Ingraham, J.

(concurring):

I concur with Mr. Justice Houghton, and I am'also of the opinion that if there'was a breach of the contract by the defendant the measure of damages was the market price on the twenty-third day of January or the fifteenth of February. It was, therefore,' error to refuse the testimony offered by the defendant as to the market value of the hops in January and February. On January twenty-third the defendant expressly demanded the delivery of' the hops, which were then due under the original contract, and. stated that the refusal to submit samples and prices at that time would be taken as a refusal on the plaintiffs’ part to comply with the modified contract. This position was restated by the letter of February fifth, and the fifteenth of February was then fixed as the definite date for "a breach of the contract on the part of one party or the other. The position of both parties had then been stated, the plaintiffs claiming that their rights were to be determined by the original contract of December 5, 1904, while the defendant claimed that the modified contract should control. ■ If the jury should sustain the plaintiffs’ contention, there was certainly evidence to base a finding that there had been a breach of the contract on the 15th of February, 1,905.

Judgment and order reversed, new trial ordered, costs to appellant to-abide event.  