
    The Frank Presbrey Company, Respondent, v. I. Miller, Incorporated, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Principal and agent — Eights and liabilities of principal as to third person— Extent of actual authority of agent to bind principal (including implied authority) — Authority to modify contract.
    Authority to deliver a written order for an advertisement to the proprietor of a newspaper for acceptance does not imply authority on the part of the person delivering the order to change its terms.
    Appeal by defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, ninth district, borough of Manhattan.
    Leon Laski, for appellant.
    Frederick H. Denman, for respondent.
   Seabury, J.

This action was brought to recover thirty-nine dollars,, alleged to be the balance due under a contract. The defense was non-performance. The defendant sent plaintiff the following order:

“ New York, November 25, 1908.

Messrs. Frank Presbrey Co.,

“ Ho. 3 East 29th St.,

“ New York:

“ Gentlemen.— Enclosed I hand you copy for my first advertisement, this and future business to be credited to Thomas B. Richardson.

“ Please insert this adv., not to exceed cost of $40.00/100 on front page or society news page of the Herald, Hov. 29th, Sunday; also same adv. to occupy 1/8 page in next week’s issue of Vogue.

“ If this advertising gives indication to warrant continuance, it is my intention to go further.

“ Very truly yours,

“ P. S. Please submit proofs.”

The advertisement directed to be inserted in Vogue was inserted and paid for. The advertisement directed to be inserted in the Herald was inserted, but has not been paid for by the defendant. Payment was resisted upon the ground that the advertisement was not inserted on the “ front page or society news page,” as called for by the contract.

The plaintiff contends that an agent of the defendant authorized the change in the location of the advertisement. The defendant denies the agency. The evidence discloses that one Richardson obtained the order above set forth from the defendant and delivered it to the plaintiff and, upon being told that the advertisement could not be inserted on the “ society page ” of the Herald!, directed the change. There is no other competent proof in the record to show on whose behalf Richardson acted and from whom he obtained the authority to direct the change, except that Richardson’s name was mentioned in the order, as appears above, and that defendant, subsequently to the giving and acceptance of the order, paid for the insertion of the advertisement in Vogue.

While the evidence is sufficient to show that Richardson was authorized to deliver a written order, signed by the defendant, to the plaintiff for the purpose of acceptance, it is wholly insufficient to show that Richardson was clothed even with apparent authority to change the terms of that order. The order was definite in its terms and signed by the defendant. Richardson changed the terms of the order over defendant’s signature in the presence of the plaintiff, and the plaintiff accepted the order as changed without questioning Richardson’s authority to malee that change and, in so doing, it acted at its peril.

As the record is barren of evidence to show that the defendant authorized or ratified the change, the judgment should be reversed.

Gildersleeve and Lehman, JJ., concur.

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