
    Robert J. Waterman, Resp’t, v. Addis E. Bowler, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Factors—Unauthorized expenditures.
    A contract under which defendant was to sell a team of horses for plaintiff provided that plaintiff should pay for their keep after two weeks and allow defendant one-half of the selling price over a certain sum; that defendant should doctor them free of charge; that plaintiff would pay half the shoeing and defendant “handle the team as he shall see fit.” Held, that the last provision did not authorize defendant to make-a gratuity to the purchaser’s coachman at plaintiff’s expense; that the provisions of the contract as to expenses necessarily excluded all others not therein mentioned.
    Appeal by defendant from a judgment entered in Chautauqua. county on the report of a referee.
    
      Stearns & Warner, for app’lt; J. G. Record, for resp’t.
   Dwight, P. J.

The action was for money had and received. The plaintiff was the owner of a pair of horses which he sent to the defendant, at Boston, Mass., to sell for him. The defendant sold the horses, and the charge is that he kept back part of the price. And so, it seems, he did, but he seeks to justify his conduct in that respect on the plea that he was compelled to pay a fee ” to the coachman of the purchaser of the team in order to effect the sale. He contends that this expense was authorized in two ways : First, by the true construction of his written contract with the plaintiff, and second, by a special authorization given orally after the execution of' the contract. The latter contention was disposed of by the referee when he found upon conflicting evidence that no such specific authority was given. The «other contention is disposed of by a reading of the contract in writing, which was in the following terms:

“ Boston, May 12, 1888.
“ I this day put my team, known as “ Maggie B.” and “ Happy Jack,” into the hands of A. E. Bowler to be sold. I agree to risk their life and health and A. E. Bowler ■ agrees to doctor them in ■case of sickness free of charge to me. A. E. Bowler agrees to keep them two weeks from this date free of charge to me, but after two weeks I promise to pay eighty-five cents per day for the keeping of the two. In consideration of his, A. E. Bowler’s services, I agree to divide equally all the money received for the team after I receive ($1,300) thirteen hundred dollars. He, A. E. Bowler, will provide a doctor for the horses in case of sickness, he to pay for the same and no expense to me. I agree to pay one-half the shoeing .and A. E. Bowler to handle the team as he shall see fit.
“R. J Waterman,
“A. E. Bowler.”

It is under the provision contained in the last line of this agreement: “A. E. Bowler to handle the team as he shall see fit,” that authority to make a present to the coachman at the expense of the plaintiff is claimed by the defendant. The proposition admits of no discussion. Every such expense, and every possible expense to the plaintiff, for whatever should be done in and about the making of the sale of the horses, except those expressly mentioned in the contract are completely excluded thereby. It is a ease for strict application of the maxim, Expressio unius exclusio alterius.

There seem to be no exceptions in the case of greater merit than those already considered.

The judgment should be affirmed.

Macomber and Lewis, JJ, concur.  