
    Alberto H. Caffee, Pl’ff, v. William Ottman et al., Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    •Contract—Breach—Acceptance—Evidence.
    In an action for Breach of a contract for the manufacture and sale of goods to plaintiff, the defense was an acceptance of the goods. Evidence was given tending to show that on delivery of the goods defects were found, but that an employee of defendants’ testator, who had charge of the negotiation, urged plaintiff to keep them, stating that he would find a purchaser for them and make another lot for plaintiff, and that any money paid out would be paid back besides his profit. This evidence was stricken out on motion. Held, error; that plaintiff had a right to show the facts and circumstances under which he received the goods.
    Motion for new trial, the complaint having been dismissed and exceptions ordered to be heard in the first instance at general term.
    The action was for damages for alleged breach of an executory contract, without warranty, to manufacture 40,000 packs of comic-playing cards, over ten thousand of which were delivered to the plaintiff, many of which he sold and none of which he offered to return.
    
      I. D. Warren, for app’lt; A. G. Pox, for def’ts.
   Van Brunt, P. J.

This action was brought against an executor to recover damages for an alleged breach of an executory written contract entered into by his testator and the plaintiff to-manufacture certain merchandise; the plaintiff alleging that the deceased failed to keep his contract in every respect, and that he suffered damages to a large amount, for which he prayed judgment

The defense relied upon seems to have been that the plaintiff by receiving the cards, offering them for sale and selling large quantities of them, accepted them and no cause for damages for the alleged defects which were confessedly visible on inspection survived the acceptance, and this seems to have been the ground on which the ruling of the court below was based.

It appears that all the conversations in reference to this contract were had with one Bonnier, an employee of the deceased, and it is claimed by the plaintiff that whatever receipt of the goods there might in fact have been, resulted from an arrangement entered into between Bonnier, claiming to represent the deceased, and the plaintiff which did not amount to an acceptance of the goods.

The evidence of what took place between Bonnier and the plaintiff was excluded, and hence the goods having been received and partially sold by the plaintiff, the court held that there had been an acceptance under the contract, and their palpable failure to comply with the contract formed no basis for this action.

We think this was error. The plaintiff had a right to show the facts and circumstances under which he received the goods in question. As already stated all the conversations in reference to this contract were had with Bonnier. In fact. Bonnier was held out to plaintiff as the confidential employee of the defendant. It was to him that the plan upon which this merchandise was to be manufactured was divulged by the plaintiff and it was according to such divulged plan that the contract was to proceed.

Upon the tender of the goods and the examination of the same, the plaintiff declared to Bonnier that the goods did not come up to the contract, specifying the defects, and that Bonnier replied that he didn’t know that they did not come up to the contract, but added, “ Don’t hold us too closely to thatthat he knew a party who would take them all off the plaintiff’s hands at once, and that he would sell every one of them for him and get another order for more cards, and that the plaintiff told him he would have nothing to do with it as it stood, and that Bonnier pressed the plaintiff, because his name was printed upon the merchandise, and they could not sell it, to offer the same for sale, and promised that they would make another lot for the plaintiff.

It was under these circumstances that the cards were accepted, as far as they were accepted, and offered for sale, Bonnier stating that all their expenses they would see him paid, and whatever money was paid out they would see them paid back and return besides his profit.

It is true that this latter testimony was stricken out. But it is to be considered upon the question as to whether the motion to dismiss was properly granted.

We think it was error to strike out testimony of this character. It is apparent from the evidence that Bonnier was the alter ego of the deceased, that he had charge of this business, and whatever representations he made to the plaintiff in order to get him to take possession of the goods was competent upon the question whether he had received them without objection so as to deprive him of his right to claim damages for the breach of his contract.

It certainly would be establishing a harsh rule to hold when an employee is presented to a contracting party with the apparent authority to take charge of a negotiation, and proceeds with it to the very end, that the principal when he is sought to be charged with the acts of the employee should be allowed to say: “ You. must prove express authority from me for the employee to bind me.” In all departments of mercantile business employees occupying particular positions are presumed to have the authority to do all that is customarily done in those positions, and it is the application óf this rule to the relations of Bonnier to the deceased that makes his declarations and acts evidence. If the defendant was alive he could not testify to any transaction he had with the plaintiff. He seems to have been by upon one or two conversations, but nothing was said to him or by him. . The whole business was transacted by Bonnier by and with his authority, and such business was not terminated until the acceptance of these cards by the plaintiff. Any complaint which the plaintiff had to make in respect to the goods would be under the circumstances naturally made to Bonnier, as he was the only person with whom, he had any dealing, and he naturally supposed when he refused to receive these cards any statements made to induce acceptance were made with authority.

We think therefore that the motion for a new trial should bel granted, with costs to plaintiff to abide the final event

O’Brien and Patterson, JJ., concur.  