
    JOHN WHITE and others, Appellants, v. JACKSON C. FULLER, Respondent.
    
      Agency — Custom—who bound by.
    
    This action was brought to recover damages for the breach of a contract for the purchase of coal, alleged to have been made with an agent of the defendant, the coal to be delivered at various times covering a period of four months. The defense was that the party making the contract was not the agent of the defendant. Upon the trial evidence was given to show that by a custom existing in reference to agencies for coal, the agent had not, unless specially authorized, the right to make a time contract such as the one in question. Held, that as the plaintiff would be presumed to have dealt with reference to the custom (Easton v. Clark, 35 N. Y., 232 ; Story on Agency, §§ 334, 335), it was incumbent upon him to have ascertained whether the agent had the special power to make the sale in question, and that as he had failed to do so, the defendant was not liable upon the contract, the agent not being in fact authorized to make it.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury.
    
      William W. Goodrich, for the appellants.
    
      Aaron J. Vanderpoel and Joseph A. Welch, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.  