
    Charles C. Conant and Herbert Longendyke, Respondents, v. The American Rubber Tire Company, Appellant.
    
      Principal and agent—contract signed “ J. F. Aldrich, Mgr. Columbia ” Company — liability of the company under it — the scope of an employment is for the jury — appearance of authority.
    
    The fact that a contract is signed “ J. F. Aldrich, Mgr. Columbia Pneumatic Wagon Wheel Co.,” and does not in terms purport to be the contract of the corporation, will not relieve the corporation from liability upon the contract if it appears that Aldrich had power to make the contract for it, and that the contract related to the business of the corporation, and was given and received as its act.
    The question whether a certain act is within the general scope of a servant’s employment is ordinarily one for the j ury to determine.
    The principal is responsible only for that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent.
    Appeal by the defendant, The American Rubber Tire Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Madison on the 17th day of December, 1898, upon the verdict of a jury rendered by direction of the court.
    
      Chas. W. Stapleton, for the appellant.
    
      Chas. F. Mclindon, for the respondent.
   Merwin, J.:

. The defendant is a domestic corporation, organized in August, 1895, under the name of the Columbia Pneumatic Wagon Wheel Company.” In 1896 its name was duly changed to the “American Rubber Tire Company.” The plaintiffs are the successors in interest of Conant & Randall, who, in 1895, were doing business at Troy under the name of the Journal Publishing Company, and were publishing once a month the Carriage and Harness Dealers' Journal.

It is claimed by the plaintiffs that, on the 20th of September, 1895, a written contract was made between the Journal Publishing Company and the Columbia Pneumatic Wagon Wheel Company by which, in substance, the wheel company had the right to advertise in the Carriage and Harness Dealers' Journal to the extent, in the aggregate, of twelve pages, to be used at any time ordered by the wheel company within two years from the date of the first insertion, in space from one-fourth to a full page, the first insertion to go in the ¡¡November or December issue, in consideration of which the wheel company agreed to pay the publishing company the sum of $360, payment to be made quarterly.

This action'was commenced June 26, 1897. It is alleged in the complaint that the plaintiffs, or their predecessors, have performed on their part the contract, or have been ready and willing, and have offered to perform; that there was paid on said contract by defendant, in April, 1896) the sum of forty-five dollars, and in December, 1896, the sum of forty dollars, and that there remained due and unpaid thereon the sum of one hundred and eighty-five dollars, for which sum judgment was demanded.' The defendant in its answer denied that it ever made the contract claimed by the plaintiffs, and that whatever advertising the plaintiffs had done for the defendant had been fully paid for.

At the trial, it appeared that the contract under which the plaintiffs claimed to recover was signed “ J. F. Aldrich, Mgr. Columbia Pneumatic Wagon Wheel Co.” It did not in terms purport to be the contract' of the corporation. The .advertisement to be inserted was described as our advertisement,” and it was - stated “ we will pay” the price named. .

It is claimed by the defendant that the contract is only the individual contract of Aldrich. Still, if Aldrich was in' fact authorized by the corporation to make such a contract,, and -it related to the business of the corporation and was given and received as the act of the corporation, the form of the contract would not of itself, within the authorities, relieve the defendant" from liability. (Morrill v. Segar Mfg. Co., 32 Hun, 543 ; Bank of Genesee v. Patchin Bank, 19 N. Y. 312; Bush v. Gilmore, 45 App. Div. 89.)

The main question at the trial was whether the defendant was bound by the contract, either by reason of Aldrich having authority to make it in behalf of the defendant, or by reason of: ratification by the defendant after having full knowledge of its contents.

The plaintiff called as a witness the president of the defendant. He testified that Aldrich was an' employee, but not an officer of the ■ defendant; that he acted in a limited capacity as manager, his duties being to solicit orders, oversee workmen and shipments, and make such little purchases as might be necessary to run the business from day to day, but that he had no authority to make a contract like the one in controversy, and was expressly prohibited from making such a contract; that he, the witness, was himself the manager of the defendant; that in making certain admitted payments to the plaintiffs for advertising he did -it upon the supposition that there was a. contract simply for monthly advertising, and without any knowledge of any contract, as claimed by plaintiffs, extending over a period of two years and for a fixed sum for the whole; that as soon as he learned of the contract claimed by the plaintiffs, he" and the corporation repudiated it, and that whatever advertising had been done by the plaintiffs up to that time by order of the defendant, was paid for. Further evidence was given on the question of ratification.

At the close of the evidence, it was held by the court that the contract was witjiin the apparent scope of the authority of Mr. Aldrich as manager of the defendant, and that the defendant was bound by it. Upon this basis a verdict was ordered for the plaintiffs.

The contract in question was made soon after the organization of the defendant. What knowledge or information the plaintiffs, or their predecessors, then had of the authority, actual or apparent, of Aldrich, or of the acts of the corporation in regard to him, does not appear. One Comstock represented the Journal Company in making the contract, and he was not called as a witness. Nor was. Aldrich called as a witness. It does not appear that Aldrich had ever made in behalf of the defendant such a contract before. “A principal is only bound by an act of his agent in excess or abuse of his actual authority, where a third person, believing and having a. right to believe that the act was within the authority, has acted or-refrained from acting in reliance thereon, and would sustain damage if the act of the agent was not "considered that of the principal.”' ( Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5.) The principal is responsible only for that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent. (Edwards v. Dooley, 120 N. Y. 540, 551.)

The trial court erred, we think, in holding as matter of law that the defendant was hound by the contract. The question of ratification was, concededly, a question of .fact for the, jury. Ordinarily the question whether a certain act is. within the general scope of a servant’s employment is for the jury to determine. (Mott v. Consumers’ Ice Co., 73 N. Y. 543, 550.) The evidence in this case' was not sufficient for the court to hold as matter of law that the contract was -within the apparent scope of the employment of Aldrich. The fact that the company or its president may have been willing to- recognize a contract by him for advertising from month to .month would not justify the contract in question.

All concurred, except Smith, J., not sitting.'

Judgment reversed and a new trial granted, costs to abide the event.  