
    (84 Hun, 194.)
    MERRITT et al. v. BISSELL.
    (Supreme Court, General Term, Third Department.
    February 12, 1895.)
    Principal and Agent—Ratification of Acts of Agent.
    Defendant entered into an agreement with one S. for the erection of a house, under the direction of a specified architect The architect, assuming to represent defendant, made a contract with plaintiff to furnish stone. The stone was consigned to defendant, and the bill sent to him, with the request that payment should be made to plaintiff, and not to the contractor. Defendant replied stating that the bill was to be paid by the contractor, but he did not repudiate the contract. Afterwards he made a payment on the bill, field, that defendant thereby ratified the contract for the price of the stone, and was liable to the plaintiff according to its terms.
    
      Appeal from judgment on report of referee.
    Action by Edwin Albert Merritt and another against Herbert P. Bissell, to recover a balance alleged to be due on a contract. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Martin Carey, for appellant.
    Charles O. Tappan, for respondents.
   MAYHAM, P. J.

This action was brought by the plaintiffs to recover a to due them on a contract alleged to have been made by the plaintiffs with defendant, by his agent, under which the plaintiffs claim to have delivered a quantity of red sandstone for the construction of the defendant’s house, in Buffalo, and for which the defendant refused to pay. The answer of the defendant denied the making of the contract by him, and denied that the defendant’s alleged agent had any authority to make the same, or that he ever ratified any contract made by such alleged agent. The case discloses that, in the winter of 1891-92, defendant employed Charles D. Swan to submit plans and specifications of a house which he contemplated building in the city of Buffalo, and to superintend the work of construction. Plans were submitted by the architect, and, on examination of the same by the defendant and his wife, it was found that the specification of the masonry proposed rock-faced limestone, when.the defendant’s wife preferred red sandstone, used to some extent in that city in the construction of residences. Upon the assurance of the contractor that it was no more expensive than limestone, it was decided to substitute red stone in the specification. Afterwards, upon the specification of that kind of stone, bids were called for upon the masonry, and one Schumacher was the successful bidder; and the evidence shows that the contractor, architect, and defendant all understood that the masonry was to be constructed of red sandstone. The contract with Schumacher provided that:

“The contractor shall and will well, sufficiently, perform and furnish, under the direction and to the satisfaction of Charles D. Swan, architect (acting as agent of said owner), all the work included in the masonry work of the proposed new building, dwelling house, * * * according to the true intent and meaning of said drawing and specifications, and of these presents incident thereto, and shall provide all scaffolding, implements, and cartage necessary to the due performance of said work.”

The contract was minute in all details relating to the time and manner of performance by the contractor, and provided, in case of failure or neglect of the contractor to perform the contract according to its terms, on the certificate of the architect of such failure of the contractor to perform such work and to furnish materials, the owner shall be at liberty to terminate such employment, and that the contractor shall not be entitled to receive any further payment under the contract until the owner shall have completed the construction according to the specifications of the contract, when he shall deduct the expense of such completion, when the excess, if any, over such expense shall be paid to the contractor. The contract price for such work and materials was fixed at $2,600, payable at different times, as specified in the contract, as the work progressed. The contract between the defendant and Schumacher was dated on the 28th day of June, 1892. The evidence tends to show that Swan, assuming to represent the defendant, on the 21st of May, 1892, contracted with the plaintiffs’ company to furnish the red stone to defendant at Buffalo, on the cars, cut and fitted as required by the specifications, at the price of $1,385. Plaintiffs’ counsel put in evidence a letter written by plaintiffs to Charles D. Swan, dated May 21,1892. This letter was admitted over the objections of the defendant. It contained the terms on which the plaintiffs proposed to furnish the red stone at defendant’s place in Buffalo. There was no proof that the defendant had ever seen the letter. There were several other letters, some of which passed between the stone company, "how represented by the plaintiffs, and this defendant, and some between plaintiff and Swan, whom the plaintiffs treated and seemed to recognize as the agent of the defendant. Immediately on making the contract with Swan the plaintiffs commenced getting out and cutting the stone, and loading them on the cars as fast as they were dressed, and on the 29th of June shipped two car loads of stone, cut and prepared to lay in the defendant’s building, consigned to the defendant, at the city of Buffalo, and on the 1st day of July notified Swan, the defendant’s architect, of such shipment. On the 27th of July, 1892, the plaintiffs addressed a letter to the defendant, informing him of the shipment of June 29th, and also duplicate receipt for cars, and itemized bill of the stone shipped on the two cars; and in the letter they called attention to the contract for stone, made with Swan, as agent for defendant, and the amount of the plaintiffs’ bill for stone under that contract. On the 29th of June the defendant, by John O’Sullivan, agent, acknowledged the receipt of the two. car loads of stone from the plaintiffs’ company. On the 29th of August, 1892, the defendant replied to the letter of the plaintiff of July 27th; stating, among other things, that he understood from his architect that he had ordered the stone from the Potsdam Red Sandstone Company, in the defendant’s name, but that the bills would be paid by the contractor, and therein referred the plaintiffs to the architect and contractor. It will be observed that in the letter the defendant did not repudiate the contract made by Swan with the plaintiffs, or dispute the power of Swan to make the contract as his agent. To the letter of the defendant the plaintiffs replied on the 5th of September, asking that the defendant’s check for the stone should be payable to the order of the plaintiffs, and not to the defendant’s contractor. On the 15th of September, 1892, the defendant paid the cartmen for transferring the stone from railroad to site of building, on the certificate of Swan, the architect, and charged the same to the contractor. The referee finds that on the 19th of October, 3892, the defendant paid plaintiffs, on the price of these stones, $500, and that, with the amount of

freight and transportation, is all that he has paid the plaintiffs on these stones.. There is much more evidence offered by the respective parties to the controversy; tending, on the one side, to establish the validity of the contract by Swan with the plaintiffs, as the agent of the defendant, and also, on the other side, tending to prove a want of authority on the part of Swan to bind the defendant by the contract made with the plaintiffs.

The referee finds that there was no original authority in Swan, as the agent of the defendant, to make the contract of May 21,1892, with the plaintiffs, but that by the payment of $500 and the freight and cartage, and the use of the stone shipped by the plaintiffs under that contract, the defendant, with knowledge of the existence of the contract, and its terms, ratified and adopted the same, and became liable to pay the plaintiffs according to its terms. We think the evidence is sufficient to uphold such finding and conclusion. Under the conflicting evidence^and theories of the respective parties, it was a question of fact, for the referee to determine, whether or not the defendant, with full knowledge, ratified and adopted that contract. Upon that question of fact the referee’s finding was supported by some competent evidence, and there is no sufficient preponderance of evidence against such finding as to justify the court, on appeal, to interfere with such conclusion. It is a familiar rule, of universal application, that an unauthorized act of one assuming to be the agent of another may be ratified by the one for whom such agent assumes to act, so as to bind the principal as effectually as if such agent had precedent authority. This rule is stated in 1 Am. & Eng. Enc. Law, as follows:

“An unauthorized act by one assuming to be an agent for another may be ratified by the principal, and such ratification gives to the act the same effect as if it were previously duly authorized.”

And the learned author and compiler cites, under this principle, a large number of authorities in this and other states, as well as in the federal and English courts. There seems to be great propriety in the application of this rule to the case at bar. The defendant had invested Swan, the architect, with large powers to act for him in the construction of this house. He and the defendant and defendant’s wife had agreed and settled upon red sandstone as ihe material to be used in its construction, although the specification with the builder wa-s for limestone. This change of plan was made between defendant and the architect before any stone had been contracted for by any one. Clothed as he was with some authority, as agent, the ratification by the principal related back to, and made his act in making this contract the act of the principal, ab initio, so that the allegations that the act was done by a duly-authorized agent is sustained by the ratification of the act by the principal. Hoyt v. Thompson, 19 N. Y. 207-219.

We have examined the exceptions taken by the defendant to the ruling of the referee to the receipt and rejection of evidence upon the trial, and to his finding and refusals to find, and see no error for which this judgment should be reversed. Judgment affirmed, with costs. All concur.  