
    (71 Hun, 442.)
    PAGE et al. v. METHFESSEL.
    (Supreme Court, General Term, Fourth Department.
    September 23, 1893.)
    1. Principal and Agent—Evidence of Relation.
    Defendant gave plaintiffs a writing declaring himself responsible for all orders for goods sent by M., Agent, “if the same are countersigned by me,” and on the same day countersigned such an order. M. was insolvent, and carrying on business in defendant’s building under the name and style of “M., Agent” His wife furnished the means, but this was unknown to plaintiffs. Defendant was his bookkeeper and financial manager, depositing all money received for the sale of goods in his own name, and checking it out to pay for goods purchased. During the four years following the giving of such writing, plaintiffs filled hundreds of orders, aggregating about $35,000, some given by defendant, but mostly given by “M., Agent,” none of which, except the first, were countersigned by defendant, but all were paid by him; and, in remitting for the first seven of such orders, he referred to the fact that plaintiffs sent the goods without his guaranty, “thereby doing us a favor, for which we feel grateful.” He wrote them many letters from which it might be inferred that he had a personal interest in the business. The goods were charged to “M., Agent,” and plaintiffs did not testify that they relied on defendant Held, that a finding by the referee that plaintiffs had a right to treat defendant as M.’s principal in the sale of goods to “M., Agent,” after the expiration of such four years, should not be disturbed.
    2. Same—Laches.
    The fact that plaintiffs allowed their bills to accumulate to the amount of over $4,000 does not constitute loches on their part, in the absence of any suggestion by defendant that he would not pay the same, or that he proposed to change the current of business.
    8. Reference—Reopening Case—Discretion of Referee.
    The terms on which a case on reference will be reopened, and a party permitted to offer other evidence, are within the discretion of the referee.
    Appeal from judgment on report of referee.
    Action by Alanson S. Page and another against Anton G-. Methfessel on an account for goods sold and delivered by plaintiffs to Philip Michel, Agent. lYom a judgment entered on the report of a referee in favor of plaintiffs, defendafit appeals.
    Affirmed.
    In the complaint it is alleged that at divers times between October 7, 1890, and June 10, 1891, the plaintiffs, at the request of defendant, and on his promise to pay therefor, sold and delivered to Mm goods at prices agreed upon, and payable in 60 days, amounting to, and of the value of, $4,078.90. The answer denies, in substance, all the allegations of the complaint, except the defendant admits he has been requested to pay certain moneys to plaintiffs.
    
      Argued before HARDIN, P. J., and MEEWIN and PAEKEE, JJ.
    Van Hoevenberg & Holt, for appellant.
    D. P. Morehouse, for respondents.
   MERWIN, J.

All of the goods for which a recovery has been had in this case were ordered by “Philip Michel, Agent,” and were shipped by plaintiffs to “Philip Michel, Agent,” at Stapleton, Staten Island, and were charged in the same way upon plaintiffs’ books. The referee has found that the defendant, by his acts and conduct in these and similar prior transactions with plaintiffs, held Michel out to them as his agent in purchasing these goods, and that in reliance upon that, and in the belief, induced by such acts and conduct, that defendant was the principal behind Michel, they made the sales in question. In other words, it was held that the plaintiffs had the right to treat the defendant as the principal in the transactions. The question in this case is whether such finding of the referee is sustained by the evidence.

The plaintiffs are manufacturers at Minnetto, Oswego county, of shade cloth, window curtains and fixtures, under the firm name of the Minnetto Shade-Cloth Company. .The defendant, since April 1, 1886, has resided at Stapleton, Staten Island, and owned there a factory building for the manufacture and decorating of shade cloth into window shades. During this period, Philip Michel, who is a practical window-shade manufacturer, lived at Stapleton. In the latter part of April, 1886, and before the 29th, the business of manufacturing and decorating window shades at defendant’s factory was commenced under the name and style of “Philip Michel, Agent,” and such business was carried on under that name until after June 9, 1891. During this time, Michel was the practical shade maker and managing agent of the business, and defendant was the office man and bookkeeper, and had charge of.the finances of the business. On the 29th April, 1886, Michel, as agent, had a negotiation with one Gillett, who was a salesman and agent of the plaintiffs, in reference to the purchase of goods from tire plaintiffs for the purpose of manufacturing and decorating in said factory. Gillett inquired of Michel as to his financial responsibility, and Michel replied, “I have a friend who will advance me some money to do business;” and thereupon Michel took Gillett to the house of defendant, introduced him to defendant, and then left. After Michel left, Gillett asked defendant whose agent Michel was, and defendant replied:

“He has been unfortunate, and cannot use Ms own name. I am ready to assist Mr. Michel according to my ability. All the orders received from Mr. Michel, countersigned by myself, I will be responsible for.”

The defendant, then, at Gillett’s request, wrote, signed, and delivered to him a memorandum, of which the following is a copy:

“Stapleton, April 29, 1886.
“I herewith declare myself to be responsible for all orders sent by Phil. Michel, Agent, to the Minnetto Shade-Cloth Company, if the same are countersigned by me.
A. G. MethfesseL”

After this, and on the same day and occasion, an order was signed and delivered to Gillett, as follows:

“Philip Michel, Agent.
“1 po. ea. 18-32-38-62-6G-GS-64-5S.
“Philip Michel, Agent, Stapleton. A. G. MethfesseL”

These goods were shipped as directed, and soon thereafter the plaintiffs received in payment thereof from the defendant, by mail, his individual check on the German-American Bank of New York for the amount of the order, less a discount of 2 per cent, allowed for payment within 30 days. The next order seems to have been about May 25th, and not countersigned by defendant, by reason of his absence. On the 21st June, 1886, the defendant writes to the plaintiffs, inclosing an order, as to which he says: “You will oblige me by sending at your very earliest convenience to Phil. Michel, Agent.” He also inclosed his check for the amount of seven bills from May 25th to June 14th. In this letter he also says:

“Our intention is to pay always cash, and, if we do not do it this time, it is because I was absent on a trip west, and we thought that the goods bought of you in the first days of May would last until my return. Orders, however, coming in earlier and larger than we expected, Mr. Michel applied to you for more goods, which you sent without my guaranty, thereby doing us a favor, for which we feel grateful. I send the full amount of those seven bills, trusting that you will allow all the discount you possibly can, and deduct the same from the amount of next bill.”

After the first order, none were in form countersigned by defendant. Some orders, however, were sent by the defendant himself, and many letters of defendant are in evidence, from which it might be inferred that the defendant had a personal interest in the business. For instance, on the 25th September, 1886, he sends an order for certain specified goods, and adds, “We will soon give you larger orders.” The goods, however, were mainly ordered by “Philip Michel, Agent,” and all were shipped and charged in that form. The dealings were quite large, comprising hundreds of orders, aggregating about $35,000, and continued to June 9, 1891. All of the goods so ordered and shipped, down to October 2, 1890, were paid for, from time to time, by the individual checks of the defendant on the German-American Bank of New York, inclosed in letters written by him to the plaintiffs. The orders since October 2, 1890, are the. items involved in this suit. All the goods sent by the plaintiffs were used at the factory in Stapleton, and all the proceeds of their sale after being manufactured, excepting a small amount, were turned over to, and received by, the defendant, and were deposited by him; with other moneys belonging to him, in his bank account with the German-American Bank. It is shown on the part of the defendant that Michel was in fact the agent of his wife, and employed the defendant as his bookkeeper and cashier, and that defendant kept an account of the moneys received, and checked them out as directed by Michel. All this, however, was unknown to plaintiffs. Defendant was in a positian to know of all the orders sent, and no objection was made by him that they were not countersigned by him, or that Michel did not have authority to bind him.

These are the main features of the case. It seems to me very clear that the evidence warranted the conclusion that the limitation or condition in the writing of April 29, 1886, that the orders should be countersigned by the defendant, was waived by the defendant, or at least that the plaintiffs had a right to believe that it was not required by defendant. In his letter of June 21, 1886, he excused the want of it, and treated it as a favor that the plaintiffs sent the goods without it; and for four years and upwards, thereafter, he paid the bills without question, and without any suggestion that the countersigning was important. If the limitation was waived, that left the declaration of defendant general,—that he would be responsible for all orders sent to plaintiffs by Michel as agent. This responsibility was, in effect, acknowledged by the defendant, so far as the plaintiffs were concerned, from June, 1886, to October, 1890. The plaintiffs were informed of no other person as principal. The defendant himself gave orders, and indicated a personal interest in the business. The authority given by the paper of April 29, 1886, was never revoked. The plaintiffs had a right to assume that the authority continued after October, 1890, as it had existed before. Bodine v. Killeen, 53 N. Y. 93.

It is suggested that the credit was not given to defendant, because the goods were charged to Michel as agent. That form of charge indicated that credit was not given to Michel individually, and there was no other known to plaintiffs, to whom credit would be given, except the defendant. The plaintiffs’ agent, before the commencement of the negotiation, in April, 1886, was informed that Michel was insolvent, and it is easy to infer that no one intended or expected that credit would be given to him. It is also suggested that the plaintiffs did not testify that they relied on defendant. In such a case, it is said in Brown v. Bowen, 30 H. Y. 520, that, in the absence of proof of the effect of the admission on the party setting up the estoppel, it is for the jury to say whether, on the facts, the several essential parts of the estoppel are proved. In the present case it was a question of fact whether the defendant, by his acts and conduct, held out Michel to the plaintiffs as his agent, and whether, from such acts and conduct, the plaintiffs were led to believe, and did believe, that the defendant was the principal, and relied on this in selling the goods in suit. The conclusion of the referee on this subject should not, I think, under the circumstances of this case, be disturbed.

But it is said that the plaintiffs were guilty of loches in allowing the bills in suit to accumulate. Still, the defendant, by reason of his position in the business, presumptively knew all about the orders that were being sent to plaintiffs, and knew that the bills in suit were not paid. He was bookkeeper, and had charge of the finances, and the proceeds of all the goods sent by the plaintiffs, including those in suit, were turned over to him. He made no suggestion to the plaintiffs that he did not propose to pay any more, or proposed to change the current of the business. A large portion of the goods in suit were ordered before the payments on the prior account were completed. We fail to see any defense on the ground of loches.

After the evidence before the referee was closed, and before the decision of the case, a motion, upon affidavits and notice to plaintiffs, was made, before the referee, to correct the minutes of the referee of the testimony of the defendant as to his answer to a particular question, or that the trial be opened. Affidavits were used by plaintiffs in opposition to the motion, and there was a conflict as to what the testimony in fact was. The motion to correct the minutes was denied, but, on motion of the counsel for defendant, leave was given to defendant to recall the witness, upon certain terms as to the costs of the motion, and the further attendance before the referee, and the expenses of rebutting testimony. Nothing further was done, the terms, apparently, not being satisfactory. Whether the minutes were correct was for the referee to determine, and his decision on that is conclusive. Tweed v. Davis, 1 Hun, 252. The terms for opening the case were within his discretion, and no sufficient reason appears for this court to say that such discretion was abused. Judgment and order affirmed, with costs. All concur.  