
    Franklin Bank-Note Company, App’lt, v. Charles W. Mackey, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    
    1. Principal and agent—Relation.
    The question of agency is one for the jury where the facts are disputed.
    3. Trial—Inconsistent rulings.
    To permit one party to give evidence on a disputed point, and then to exclude the other party from giving evidence on the same point, is error.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    
      William J. Gibson, for pl’ ff; Henry L. Burnett, for def’t.
   O’Brien, J.

This action was tried at circuit, and a verdict directed for defendant, and the exceptions were ordered to be heard in the first instance at general term. The action was for work, labor and services in engraving and printing railway bonds and .stock certificates for a corporation, the defendant having guarantied payment. The defendant admitted the agreement and guaranty, but claimed that the work was not to be proceeded with until orders to that effect was given, which was never done, and that, therefore, no liability was created.

The plaintiff was a corporation engaged in the business of engraving and printing, and the defendant was interested in the formation of a railway corporation. In May, 1887, a man by the name of Hall, a stranger to plaintiff, applied to it about furnishing the bonds and stock certificates, stating that he had a bond to engrave, and wanted to know the price for which plaintiff would do it. After several visits, plaintiff gave a price, but Hall was informed that plaintiff would not go on with the work without a guaranty; and Hall, subsequently having proposed defendant as guarantor, the plaintiff’s manager prepared in writing a proposal and guaranty, which was signed by such manager and the defend- . ant. When models were selected, they were taken by Hall to defendant and by him brought back to the plaintiff, with a request to its manager to “ go on with the work, except the rate of interest.” According to defendant’s version, when the proposal or guaranty was signed, defendant fully explained to Hall the condition of the company; that it might go through, and it might not; and that it was to be understood that no work was to be done until the defendant was ready, This, defendant states, was again repeated to Hall when the models were brought for approval, and it was with this understanding—that plaintiff would do no work until further' orders—that he indorsed upon the models, “Model approved May 24, 1887, as far as it goes.” It will be seen, therefore, that the work for which suit is brought was done contrary to the express direction of the defendant to Hall, who, instead of delivering his message to plaintiff, told the latter to go on with the work. Plaintiff proceeded with the work, and engraved so much of the- plates and stock certificates as it was then able, and sent proofs of the same to defendant, which were never returned; and it is for the value of the work done between the submitting of the models and the sending of the proofs that the action is brought.

The right to recover is dependent upon the solution, of the question as to which of the parties Hall represented as agent in the - transaction ; the undisputed testimony of plaintiff’s manager being that Hall brought the models back from the defendant, and told him “to go ahead, engrave and print the bonds and stock certificates, except the rate of interest,” while the defendant and " Mr. Barnes testified without contradiction that the defendant told Hall that he did not want any work done until the plaintiff received further orders. This Hall never communicated to plaintiff. The court directed a verdict upon the ground that as a matter of law, upon the evidence, Hall was the agent of the plaintiff, and whether this conclusion was justified, and the rulings upon evidence were correct, are the questions presented upon this appeal.

The plaintiff or its manager had never seen Mr. Hall until he Called about the bonds, and never had any dealings with him before or since, and never expressly authorized him to represent the plaintiff. On the other hand, the defendant had known Hall since he was a boy; knew his father; and Hall had introduced defendant to Mr. Barnes, who was to be the chief engineer of the road, and with whom defendant had his office. The defendant does not appear, however, to have had any relation with Hall, beyond such acquaintance, nor does it appear that he authorized Hall to represent the company or- himself in the dealings with the plaintiff; but both plaintiff and defendant understood that Hall was engaged in arranging for the engraving of the bonds, for which he was to receive a commission from plaintiff. The latter fact—who was to pay the commission—is significant, but by no means conclusive; and it will be noticed upon the evidence, as it stood, that the question whether Hall was the agent of the plaintiff or the defendant, or of both, was a close one, and one which we do not think could be determined as a matter of law, presenting,, as we think it did, a disputed question of fact. As said in Mechera on Agency:

Section 105 : “Where the facts are undisputed, the court must determine whether they create an agency.” Section 106: “ It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish an agency in any given case; but it may be said, in general terms, that whatever evidence has a tendency to prove the agency is admissible, even though it be not full and satisfactory, as it is the province of the jury to pass upon it.”

It was important to both parties to be permitted to introduce-all competent evidence that they might have-which would tend teclear up the disputed question as to whether Hall was the agent of the plaintiff, or of the defendant.

Upon the examination of the plaintiff’s manager, who, it is admitted, was the person principally representing the plaintiff in the transaction, these questions were asked of him:

“ Q. Did you ever give Mr. Hall any authority to represent the company ?” “ Q.. Did Mr. Hall ever bring any other business te your company ?” “ Q. Has he ever brought any other work or job since this work ?”

These were objected to, and the objections sustained, and exceptions taken.

When the defendant was examined, the following questions were put to him:

“ Q. Did Mr. Hall make known to you at that time whether or not he was authorized by this Franklin Bank-Note Company to submit propositions ?” “ Q. State, when he [Mr. Hall] submitted these other propositions, as to what information you gave him about the condition of the enterprise,” etc.

Though these questions were objected to, the defendant was permitted to answer; going fully into what Hall had stated to him as to his being authorized, and also as well as to all the conversations that had taken place between the defendant and Hall-in the absence of the plaintiff. And such rulings were accentuated when, upon the examination of defendant’s witness Barnes, he was asked to tell what was said by Mr. Hall and Col. Mackey in his presence, though, as he stated, he could not recollect whether any one was present from the plaintiff company or not. This was objected to, but was also answered. These rulings were regarded as inconsistent. It may have been a good objection to the first question presented to plaintiff’s manager, as to whether he had ever given Mr. Hall any' authority, that this called for a -conclusion; but the same objection did not apply to the other questions, which sought to elicit information as to what dealings were had between Hall and the plaintiff, and what his relation was to the company. If the answers to these were to be excluded, then certainly the defendant shopld not have been permitted to answer the question as to statements of Hall in reghrd to his being authorized to act for the plaintiff, or to go fully into "the conversations had between them in the absence of the plaintiff. We do not hold that permitting the defendant and his witness to .give such testimony was error, but we think that granting leave to present such testimony on defendant’s part was clearly inconsistent with the ruling made which excluded the plaintiff from giving similar evidence. If it had been established, when the objections to plaintiff’s questions were sustained, that Hall was the agent of the plaintiff, then what ocdurred or was said between the plaintiff and its agent would not be binding upon the defendant, and would be competent to show what occurred between plaintiff’s agent and the defendant, even though the plaintiff was not present. But, when the rulings excluding plaintiff’s testimony were made, it had not been estáblished that Hall was plaintiff’s agent, the questions being directed to that very point of agency, and therefore the inconsistency appearing in the rulings cannot be reconciled. We think, for the errors committed in these rulings, the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Parker, J.

(concurring).—Plaintiff and defendant each claim to have regarded Hall as the agent of the other, and the case turned on the question whether he was the agent of the one or the other. On this question, plaintiff offered material evidence, which it was entitled to have considered with the other facts proved, which was excluded. I agree that for this error the judgment should be reversed.

Van Brunt, P. J., concurs.  