
    William W. Owen, Respondent, v. Edgar E. Sell, Appellant.
    (New York Common Pleas — Additional General Term,
    June, 1895.)
    An agent employed solely to carry out a contract for the sale or exchange of lands has no authority to change the terms of the contract, and his act in- so doing is not binding upon his principal.
    Plaintiff and defendant entered into a contract for the exchange of land, which provided that each should pay the interest on incumbrances on his property to the date of exchange. Defendant intrusted the completion of the contract to an agent, who entered into an agreement with plaintiff that the latter mignt pay interest on a mortgage on his land which fell due subsequent to the date of exchange, which the holder insisted upon receiving in full, and charge defendant with the amount thereof which accrued after the date of exchange, which was accordingly done. In an action to recover the amount of additional interest thus paid, held, that the agent exceeded his authority and that defendant w-as not liable to the plaintiff, although the payment inured to his benefit.
    Appeal from a judgment of the District Court in the city of New York for the seventh judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    
      F. De lysle Smith, for appellant.
    
      William II. Fegrni, for respondent.
   Bischoff, J.

The claim in suit is for moneys alleged to have been expended at defendant’s instance and arose out of a certain transaction involving the exchange of real estate between the parties. By the terms of the contract for this exchange title was to close on August 15, 1892, and .all charges for interest upon incumbrances up to that date were to be defrayed by the respective owners of the property incumbered. Interest for six months upon a mortgage for $40,000 covering plaintiff’s property was to fall due September first, but the mortgagee refused to accept payment from plaintiff, upon account, to August fifteenth. Prior to the date of clqsing title defendant was called away from the scene of negotiations and intrusted the completion of the contract to one Wearn, as agent, who at plaintiff’s suggestion entered into an agreement on defendant’s behalf that the former should pay the interest upon the mortgage in question to September first, charging the latter with eighty-eight dollars and ninety cents, the amount of the sixteen days’ interest, which payment was accordingly made.

This charge for balance of interest, together with the amount of certain unpaid taxes upon the property received by plaintiff in exchange, constituted the demand in this action, to which the defendant interposed a general denial.

The first point raised by the appellant is that the action was improperly instituted upon the ground that the plaintiff was not the real party in interest (Code Civ. Proc. § 449), it being claimed that his grantor of the property was such party. Sufficient evidence is disclosed by the record to support the conclusion that the fact was contrary to this contention, and, moreover, the question is not properly before us.

Except in a case where the plaintiff is required to establish ownership as an essential element of his cause of action, proof that he is not the real party in interest cannot be given under a general denial. Smith v. Hall, 67 N. Y. 48; Savage v. Ins. Co., 4 Bosw. 1; 36 N. Y. 655 ; Jackson v. Whedon, 1 E. D. Smith, 141 ; Abb. Tr. Brief on PI. §§ 941, 942, 954.

Here there is no dispute as to the plaintiff’s legal title to the property, nor was it essential to prove it, the demand being for an actual expenditure in the transaction between the parties, with no question of ownership arising from the nature of the claim.

The plaintiff, however, by failing to make any objection to the introduction of testimony whereby it was apparently sought to show an interest on the part of his grantor in the recovery, waived this defect in the answer (Whitman v. Foley, 125 N. Y. 654; Shrimpton v. Dworsky, 2 Misc. Rep. 123; 49 N. Y. St. Repr. 131), but the defendant’s omission to present the point in any way to the attention of the justice below precludes his availing oi the contention at this stage of the litigation. Price Printing House v. Jewelers' Pub. Co., 10 Misc. Rep. 743; Brown v. Wakeman, 45 N. Y. St. Repr. 671; Fulton v. Ins. Co., 47 id. 111.

Upon another ground, however, the appeal must succeed. It is urged by the defendant that his agent, Wearn, had no authority to make the agreement in pursuance of which the plaintiff paid the interest in question and credited himself with the amount constituting the item in suit, and that, the agency being special, defendant’s responsibility for the agent’s acts was measured by the restrictions placed upon the authority.

It is uneontradicted that this agent Wearn’s authority embraces only the performance of acts required to carry the contract of exchange into effect; no claim is made, nor does the evidence in any way bear out an assumption, that any acts of the defendant could be construed as authorizing plaintiff to deal with Wearn as a general agent. Hence, by his failure to infonh himself as to the extent of the agency, he assumed the risk that the principal would not be bound by the agent’s acts. Craighead v. Peterson, 72 N. Y. 283.

Hpon the evidence it must be held that the act of Wearn in making the agreement whereby defendant was sought to be •charged with a payment made by plaintiff on account of a future charge upon the property, accruing after defendant’s interest in the subject-matter attached to the exclusion of the plaintiff’s, involved no responsibility upon the part of defendant, since the authority given was solely to perform the contract, and power in the agent to change it was not to be implied (1 Am. & Eng. Ency. of Law, 367, and cases cited), nor was the delegated authority to be increased by the agent’s own act. Eaton v. R. R. Co., 57 N. Y. 390, 391.

True, the payment may well have inured to the defendant’s benefit, but this does not render him liable to the plaintiff foi the amount thus gratuitously expended with no solicitation upon the former’s part and with full knowledge, or imputable knowledge, of the facts. 18 Am. & Eng. Ency. of Law, 187, 188; Kenan v. Holloway, 50 Am. Dec. 162; 16 Ala. 53; Abell v. Douglass, 4 Den. 309.

Had there been any general custom whereby such a transaction as that in question could be recognized as an incident to the performance of the contract, under the circumstances, it might well have been proven, but the evidence tended to show that the only custom existing, with regard to the payments upon an exchange of property, required that the party giving mortgaged property in exchange should charge himself with the amount of interest accrued but not due, leaving it to the other party to make the full payments when nailed for by the terms of the mortgage.

The judgment rendered -was for $136.60, and the claim above discussed was for but $88.90. While the parties seem to be agreed that the balance was to coyer payments, made by the plaintiff, of certain taxes which, by the terms of the agreement, were to be paid by defendant, there is not the slightest proof of their amount in the record and nowhere is an admission of the liability disclosed.

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

Bischoff, J., concurs.

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