
    (69 Hun, 543.)
    NESTER v. CRAIG.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Agent—Authority to Bind Principal.
    Where defendant authorized a broker to sell 16,000 bushels of barley at $1.50 per 100 pounds, net, in Detroit, Mich., a contract of sale by the broker to defendant at 80 cents per'bushel of 48 pounds, to be delivered in New York at the rate of 2,000 bushels a week, payment to be made as soon as each shipment should arrive, is not within the authority, and i cannot be enforced against defendant.
    Appeal from circuit court, Ontario county.
    Action by Samuel K. Nester against Thomas C. Craig, impleaded, etc. From a judgment dismissing the complaint, entered on the direction of a nonsuit, and from an order denying a motion for a new trial on the minutes, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    D. B. Baekinstose, for appellant.
    W. S. Hubbell, for respondent.
   DWIGHT, P. J.

The action was for damages by the failure of ■ the defendants to perform an executory contract for the sale to the plaintiff of a large quantity of barley. The plaintiff was a maltster at Geneva, N. Y., and the defendants composed the firm of Gillett & Hall, grain dealers, at Detroit, Mich. The contract of sale was made by one I. Blumenthal, a barley broker, assuming to act as agent for the defendants. His authority was derived solely from the following letter and telegram:

“Gillett & Hall, Grain Commission Merchants.
“Detroit, Sept. 27th, 1890.
“Mr. I. Blumenthal, Rochester, N. Y.—Dear Sir: We express to you two samples, and you can sell, on sample, A, 6,000- bus. at $1.55 net here; B, 10,000 bus., at $1.56 net here. The weight of the barley is 46 & % lbs., but as we let them go through the cleaner in the elevator before loading the weight will come to 47 and over. * * *
“Yours, &c. Gillett & Hall. D.”
“By Western Union Tel Co.
“Detroit, Mich., Oct. 21, 1890.
“To I. Blumenthal, Com. Agt, Geneva, N. Y.: Will allow you to sell the two lots one fifty net, if not better, although the state is well cleaned out of barley, and prices will shortly go much higher. * * * Gillett & Hall.”

The contract entered into by Blumenthal with the defendants was as follows:

“Geneva, 10/6, 1890.
“Sold to S. K. Nester, Geneva, N. Y., 6,000 bushels sample A, and 10,000 bushels of sample Michigan state barley, as per samples furnished me by Gillett & Hall, of Detroit, at the price of 80 cts. a bushel, delivered track Phelps, Ñ. Y., at the rate of 2,000 bushels a week, commencing October 20th, (or faster, if so ordered,) till the sale is filled, as stated in Mr. Dieterlie’s letter of September 27th. Barley to come recleaned and uniform. Payment to be made by N. Y. exchange as soon as each shipment arrives.
“I. Blumenthal.”
S. K. Nester.” T accept above sale to me.

It was conceded that the prices named in the letter and telegram were for 100 pounds of barley, while that named in the contract was for a bushel of 48 pounds. Mr. Dieterlie’s letter of September '27th, mentioned in the contract, was the letter of the defendants, by “D.”’ which is quoted above as defining the authority of the agent, Blumenthal.

It seems very clear that the contract upon which the action is brought was not within the authority conferred upon the agent Avho assumed to make it. The authority was to sell for cash, on immediate delivery, at Detroit, at $1.50 per 100 pounds. The contract was for delivery at Phelps, Ñ. Y., at intervals of a week, dur- . ing a period of more than two months, at 80 cents a bushel, payable in installments after each delivery. These terms differ widely. Possibly the 80 cents per bushel might cover freight, insurance, storage, elevator charges, etc., in addition to the $1.50 per 100 pounds net, which the defendants were to receive, though even that is not demonstrated by the evidence; but there are other substantial respects in which the terms of the authority and of the contract differ. By the contract the defendants were charged vsdth the responsibility of carrying this large amount of grain for an average period of five weeks, while they waited for their money, and bore the risk of loss and damage by fire or other causes, except so far as they might provide for their own indemnity by insurance. They must provide nearly $1,000 for freight charges, and bear whatever risks of transportation are not covered by the liability of the common carrier. Altogether, it is difficult to see how the agent, who held only the authority conferred by the communications of the defendants of September 27th and October 4th, could have assumed to make the contract with the plaintiff of October 6th. The plaintiff must be presumed to have known the extent and limitations of the agent’s authority, because the'letter of September 27th, which controlled that authority, is specifically referred to. in the contract itself; but, even if such were not the case, he is chargeable Avith such knowledge, and limited by the terms of the authority actually possessed by the agent. He was a special agent, specially authorized for this transaction; and the plaintiff was put upon inquiry as to the extent of his authority, and dealt with the agent at his risk of that authority being exceeded. Walsh v. Insurance Co., 73 N. Y. 10; Edwards v. Dooley, 120 N. Y. 540, 24 N. E. Rep. 827; Michael v. Eley, 61 Hun, 180, 15 N. Y. Supp. 890. There was no essential fact in dispute in this case. The question whether the contract was within the authority to make it was a question of law. We think it was correctly disposed of by the direction of a nonsuit, and the judgment entered thereon must be affirmed.

Judgment and order appealed from affirmed. All concur.  