
    Edward H. Friedrick et al., Resp’ts, v. Lawrence C. Perkinson, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    1. Master and servant—Master not liable for goods sold on unauthorized ORDERS OF SERVANTS. "
    Mechanics and tradesmen cannot recover for work done or goods obtained by servants unless authorized by the master, and are bound at their peril to ascertain whether there is such authority in the servant.
    3. Same—Waiver.
    The mere fact that a party personally orders work or goods is not a waiver of a prior, notice not to do work or furnish goods for him except upon his written order, because such notice contemplates orders made by third persons and not by him.
    Appeal from a judgment rendered .in the district court of the «city of New York for the ninth judicial district.
    
      William Watson, for app’lt; A. MacDonald, for resp’ts.
   Bookstaver, J.

The plaintiffs were harness makers, and the action is brought to recover a balance claimed to be due them for making and repairing harness for the defendant from September '20, 1890, to May 4, 1891. The whole amount of the bill was $120.65 and defendant paid on account $100, admitted owing a bill of $14.10, which he had before tendered and which he paid into court at the commencement of the action; so that the only .amount in dispute upon the trial was $6.55 and the action was •defended more on principle than for the amount involved.

Along in November or December, 1890, the plaintiffs rendered a bill to defendant for work done and for repairs made, etc., which included a number of items the defendant had not ordered. He at first refused to pay for these items, and afterwards said that he would pay the bill then presented, but would pay no more bills like it, and notified plaintiffs not to make any repairs for him on his harness without a written order from him, and if they did,, he would not recognize it or pay for the work. ,,

On the trial it was conceded by the plaintiffs that the work subsequently done by them and which the defendant refused to-pay w,as done upon verbal orders from persons other than the defendant. There is not a scintilla of evidence in the case that, these items, amounting to $6.55, were ever ordered by the defendant in person or by any one authorized by him. They received their orders from stablemen, defendant’s coachman, or Mr.. Hendricks, the livery-stable keeper. Mr. Hendricks testified that, he had received no orders from the defendant to have the work done; and there was no authority shown as to either the stablemen or the coachman to order work. And defendant testified that he knew nothing about the work ever having been done.until the bill was rendered.

It is elementary law that in order to bind a person he must be-a party to the contract either express or implied, or that the contract must be made or the obligation incurred by some one having authority from the party to be bound. The plaintiffs attempted to show a waiver of the notice, because the defendant himself,, after giving it, had personally ordered certain work to be done by the plaintiffs. This was no waiver, because the notice given to, them contemplated orders made by third parties and not by the defendant personally. The testimony shows that plaintiffs were-.in the habit of going around from stable to stable getting orders from employees, of rendering bills tojthe stables and not to the parties to whom the harness belonged, probably depending upon no questions being asked as to the correctness of the bills by. those boarding horses at the stables. Every one keeping horses and carriages, and oven every householder, knows the amount o£ petty annoyance which has been occasioned by the unauthorized!, orders of servants, and the amount of trifling dishonesty such-practices have caused, and the temptation to unfaithfulness put in; the way of servants by such 'tradesmen. The sooner this practice-is stopped, the better for the morals of the community. It is time that mechanics and tradesmen understood that they cannot recover for work done or goods obtained by servants, unless authorized by the master, and that they are bound at their peril to, know whether there is such authority in the servant or not before-they can recover. The strict enforcement of the principles of law. applicable to such cases will tend strongly to increase the honesty and fidelity of servants.

The learned judge who tried this case is uniformly painstaking;- and careful, but must in this instance have overlooked the proof of want of authority.

The. judgment should, therefore, be reversed, with costs to the,appellant

Bischoff, J., concurs  