
    Hiland H. Chapin, Resp’t, v. A. V. Pratt, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Accord and satisfaction—Proof of agency.
    Proof by the alleged agent that he was specially authorized to make a. specific offer which was refused, without more, is insufficient to show authority in such agent to make a different settlement.
    2. Same—Evidence.
    Proof of a rescission of contract or of an accord and satisfaction is not admissible under a general denial. Such defenses should be pleaded as affirmative defenses.
    Appeal from judgment of the Washington county court, entered upon report of referee in favor of plaintiff.-
    Acfcion upon a check made by defendant to the order of one-Agnes M. Huggins, and endorsed by her to plaintiff. The answér was a general denial.
    The following is the opinion of the referee;
    A. D. Arnold, Referee.-—-This action is brought to recover $65 and interest from June 27, 1888, on a check given by defendant to Agnes M. Huggins, and by her assigned to plaintiff.
    The answer is a general denial.
    On June 23, 1888, defendant and Thomas Ryan, an officer, went to the home of William J. Huggins, in the town of Easton, to take a cow that Ryan had previously levied on to satisfy a judgment of about $22 in favor of defendant and against said Huggins. They met Huggins, and after some conversation, defendant agreed to take $15 in full settlement of the judgment, and Huggins agreed to go to Port Edward within a week and pay the $15. As defendant and Ryan were about leaving, Huggins said that they had a horse there that belonged to his wife that they were going to sell and asked them to look at the horse. They went to the barn and Huggins led out the horse, and Ryan asked him how much he asked for it, and he said $100, and Ryan said,. “ We will give you $75.” Huggins said that the colt was not his, and that they would have to see his wife before they purchased. They went to the house, Huggins had a conversation with his wife, and then said that they would take $80, which offer was refused by defendant and Ryan. As they were driving away, Mrs. Huggins said, ‘ If you will take the horse for $80 you may take out the $15.” Defendant and Ryan considered the matter a moment, and then said that they would do it, and defendant went into the house and gave Mrs. Huggins his check on the First National-Bank of Fort Edward for $65, and took the horse. After their return to Fort Edward, and on the same day defendant wrote Huggins as follows : “We find that the horse that we purchased of you and your wife, to-day, is not as represented. You better drive over here at once and fix the matter up with us, for we do not want any such horse and will stop the payment of that check.”'
    The check was deposited by Mrs. Huggins in the First National Bank of Greenwich for collection, and after passing through three banks was presented at the First National Bank of Fort Edward on the 27th June, 1888, for payment, which was refused, and the. check was then and there duly protested. On June 29, 1888, Mr. Huggins came to Fort Edward and saw defendant, and they had considerable conversation as to whether the horse was as represented at the time of the sale. Defendant testified that he told Huggins that he would give him $40 for the check and keep the horse, or he would give him the horse if he (Huggins) would give, him back the check and $20 in money. Huggins said his wife authorized him to come and pay defendant $10 and give him back the check and bring the horse. “ I insisted on having $20; he replied that he had no authority to give me more than $10 and the check back for the horse, and that his wife would rather he would bring the horse back than to sell it the other way and •allow me to keep it.” Huggins left and -returned on the following Monday and had another conversation with defendant, which defendant details as follows: “ Huggins said that he was authorized to give me $15 and the check, and bring back the horse, and that he could not do anything different; finally, I told him that if Eyan was satisfied, if he (Huggins) would give me eighteen dollars and the check, he could have the horse back, and he replied that he was authorized to pay only fifteen dollars and the check for the horse back; but that he would pay the three dollars out of his own pocket rather than have any trouble.” They then saw Eyan, and he consented to defendant’s arrangement, and they all went to the barn where the horse was. Huggins led out the horse, and paid defendant eighteen dollars in bills, and led the horse away, defendant counted the money and started for the depot, and on his way ■discovered that he did not get his check, and went back and looked for Huggins, but found he was gone. Huggins testified that he did not agree to give up the check, but only to give defendant eighteen dollars for the horse.
    Plaintiff purchased the check from Mrs. Huggins on July 7, 1888, with full knowledge of its having been protested.
    At the close of the evidence plaintiff’s attorney made the following motions:
    “ Plaintiff moves that all evidence given by Mr. William J. Huggins to the effect that he was instructed by his wife to make any contract concerning this horse with A. Y. Pratt, or that he was to act as agent for his wife in regard to any contract concerning this horse, or that he is the agent for his wife, be stricken out, ■on the ground that it is improper and incompetent, and because agency cannot be proved by the statement of the alleged agent, but must come from the acts or the express words of the principal, .and not through the alleged agent.”
    Decision reserved by consent.
    “ Plaintiff moves that all evidence given by witnesses for the defendant of statements which they say were made by William J. Huggins as to his authority to act as agent for his wife, or that he ■was agent for his wife in transactions concerning this check and this horse, be stricken out on the same grounds as stated in the .above motion.”
    Decision reserved by consent.
    
      If the above evidence is competent to prove the agency, or there is other evidence of agency, there is no doubt in my mind that the defendant is entitled to judgment. All the circumstances in the case point unmistakably in that direction. Should the motion to strike out be granted ? Was the evidence as to agency competent'? All the witnesses agree that William J. Huggins stated to defendant, on each of his visits at Fort Edward, that he was there under authority from his wife, Agnes M. Huggins, to settle with defendant; and all the evidence of Huggins’ authority or agency came from his declaration on those occasions.
    It is a well settled principle of law that agency cannot be-proved simply by the acts or declarations of the alleged agent. Marvin v. Wilber,^5% ¡N. Y., 270; Scott v. Stevenson, 3 Hun, 352.
    There must be other proof. Is there such proof ? If so, the acts and declarations of Huggins were competent.
    The only evidence in the case that Mrs. Huggins knew that her husband was holding himself out to the world as her agent, was in the interview at her home on June 23, 1888. And defendant testifies: “I do not remember whether I stated that when Ryan offered Huggins the seventy-five dollars he replied that he hadn’t any authority to sell the horse for less than $100. Huggins went to the house and talked with his wife and then came back to us and said they would take eighty dollars for the horse. We refused. We got into our wagon to drive away and she .spoke up and said,
    1 If you will take the horse at eighty dollars you may take out the fifteen dollars.’ ” Here was evidence only of a special agency. Huggins claiming that under his authority that he could not sell the colt for less than $100. That he then consulted his wife, in defendant’s presence, and offered the colt for eighty dollars. That finally Mrs. Huggins told them what they could have the colt for, and her offer was accepted and the check given to her. And this is the only evidence which in any way connects the alleged principal and agent Judge Selden, in Gould v. The Town of Sterling, 23 ¡N. Y., 465, says: “ ¡No representation of the agent, as to the fact of his agency or as to the extent of his power, is of any force to charge his principal. But, it being shown by other evidence that the agency existed, and that the act done was within the general scope of the power, the principal is bound by the representation as to any essential facts known to the agent, but which the party dealnig with him had no certain means of ascertaining.”
    The only authority which Huggins had to act for his wife was to sell the colt for $100, which was afterwards modified to eighty dollars. There was no proof that Huggins was general agent for his wife, and, therefore, no inference can be drawn that his subsequent acts and declarations, at Fort Edward, were -within his power as general agent. Had he been shown to have been her general agent, then his subsequent acts and declarations at Fort Edward would be entirely in accord with his previous actions. A special authority to sell is not a special authority to buy or to-settle a misunderstanding arising on a sale. There is no proof-that Mrs. Huggins ever saw the colt after June 23, 1888.. ¡Neither is there any proof that she ever heard of the trade made on July 2, 1888. Hence, there can be no ratification of Huggins’ acts and declarations of July 2, 1888. I can find no proof of any authority for Mr. Huggins to act for his wife, outside of the evidence which is objected to, and therefore, must grant the motion to strike out said evidence.
    There being no evidence of any settlement on the part of Mrs. Huggins and defendant, or payment of the check to her or her agent, the plaintiff is entitled to recover.
    
      Robert Armstrong, Jr.„ for app’lt; Gibson & Van Kirk (C. C. Van Kirk, of counsel), for resp’t.
   Putnam, J.

The check in suit was given for a valuable consideration, and plaintiff, as endorsee, properly obtained judgment thereon, unless the defense asserted by defendant of rescission of contract, or accord and satisfaction, was established on the trial. The burden was upon the defendant to establish such defense. He claimed that the alleged settlement was made between William J. Huggins, as agent of the defendant, and himself. It was for the defendant to show the authority of the agent, and he was bound to show an express authority, no general agency being shown. Messmore v. Haulenbeek, 15 Hun, 494.

The only testimony produced by the defendant to show such agency was that of William J. Huggins himself. He testified ■on that subject, in substance, as follows: “I came to Port Edward at the request of my wife; she instructed me to go there and offer them eighteen dollars, or ten dollars, I should say; she would throw off ten dollars on the check, or she would give them ten dollars and return the check; my wife would throw off ten dollars on the check if they would pay the lien, or she would give them ten dollars and take back the colt and send them the check.” This is the only evidence in the case on the subject of the authority of William J. Huggins. It shows a special agency to offer ten dollars, take back the horse and return the check. This offer was not accepted, and the agent was not shown to have any authority to make any different settlement of the matter, and hence the arrangement, in fact, made between William J. Huggins and defendant was not binding on Mrs. Huggins. It appears that Huggins did not have the check in his possession, and it is not shown that Mrs. Huggins ever received back the horse; hence there is no question of ratification involved in the case.

I conclude that defendant failed to show the authority of the agent Huggins to make the settlement alleged as a defense. Therefore, the defendant was not injured by the error of the referee, if it was an error, in striking out the testimony of Huggins as to the instructions given him by his wife.

But again I, think the referee was right in striking out the testimony referred to, although not for the reason stated by him. The answer was merely a general denial, and under that pleading the defendant could not properly prove a rescission of the contract or an accord and satisfaction. Such rescission or accord, like the defense of payment, should be pleaded as an affirmative defense. Potter v. Gates, 29 St. Rep., 662; McKyring v. Bull, 16 N. Y., 297.

The plaintiff on the trial and by motion to strike out objected to evidence tending to show this defense on the ground that such testimony was incompetent under the answer. Hence the referee did not err in striking out said testimony and his conclusion should be sustained, although for a different reason than that stated by him. The evidence in question being properly stricken from the case, no testimony remained showing the agency of William J. Huggins of any kind.

The judgment .should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J.—I concur on ground last stated in the opinion.  