
    Arthur J. Wills, Respondent, v. National Carbon Company, Appellant.
    First Department,
    July 10, 1916.
    Sale —action to recover value of property sold — authority of purchasing agent — evidence.
    Where in an action to recover the value of property claimed to have been sold to the defendant the plaintiff, in order to establish the sale, is obliged to rely upon the authority of defendant’s purchasing agent "who had no express authority to make the purchase, and the undisputed testimony is that he only investigated prices and conditions in the market and reported them to defendant’s general manager who then authorized him to purchase goods, it is reversible error to refuse to allow the defendant to corroborate this testimony by that of the general manager and to refuse to allow the defendant to show the details of the method of doing business as between the purchasing agent and the general manager, and that the general manager had not authorized the purchasing agent to procure the property in question.
    Appeal by the defendant, National Carbon Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of February, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      George Hahn, for the appellant.
    
      George H. Mitchell, for the respondent.
   Dowling, J.:

The plaintiff has recovered from defendant the value of an automatic filling machine claimed by him to have been sold to the defendant, the function of which was to take flat cartons, erect them, close the bottom, put in the contents consisting of one of defendant’s dry batteries, close the top, and as the completed package came from the machine keep count of the number handled. The plaintiff in order to establish the sale in question was obliged to rely upon the authority of Jacob W. Voorhis, defendant’s purchasing agent, for he had no transactions of any kind with any one connected with defendant in relation to the alleged purchase save with said Voorhis. Not only were his personal transactions all had with Voorhis but the correspondence in the caséis between Voorhis and plaintiff and no official of the defendant company ever communicated with plaintiff in reference to this machine, nor does he seem to have communicated directly with the company, but only through Voorhis.

The making of the contract was denied by Voorhis, who claimed that the plaintiff had taken the risk of constructing the machine in the hope that he would be able to satisfy the defendant of its utility and thus effect its sale, while plaintiff’s testimony as to the alleged sale is that Voorhis told him to go ahead and agreed to pay $3,000 for it. Plaintiff admits that although he had a written form of sale prepared for the defendant’s acceptance Voorhis refused to sign it and in fact it never was signed.

The learned trial court charged the jury that the uncontradicted testimony was that Voorhis was merely the purchasing agent of the defendant and that the ordinary and usual course of business in its dealings was to have his purchases, before they were made, authorized by the general manager. Further, that in dealing with Voorhis the plaintiff was bound at his peril to inquire and .ascertain the extent of his power and authority as an agent, and had no right to assume that he was authorized to bind the defendant by any contract he might make with the plaintiff. Also, that the defendant was not liable if Voorhis exceeded his actual authority, unless plaintiff believed and had a right to believe from the conduct of the defendant that the act was within his authority. Also, that the mere fact that the communications sent by Voorhis to the plaintiff appeared upon the stationery of the defendant did not of itself make it liable for anything which he might have written or said. The court also charged that the defendant was responsible only for such appearance of authority on the part of Voorhis as was caused by the defendant itself, and not for such appearance of conformity to authority as was caused by Voorhis only. The case was submitted upon the theory that although there was no proof of actual authority upon the part of Voorhis to bind the company, the latter could nevertheless clothe him with apparent authority to bind it, upon which one dealing with Voorhis might rely by its conduct, its acts and the manner in which it permitted its business to be conducted. So far as the jury found any apparent authority given by the defendant to Voorhis to bind it, the finding was against the weight of the evidence, for no act of the defendant is shown which authorized Voorhis to represent it save the application to him of the term “purchasing agent,” and the undisputed testimony is that he only investigated prices and conditions in the market and reported them to defendant’s general manager, who authorized him to purchase goods on printed requisitions When the defendant sought to corroborate this testimony by that of the general manager the court would not allow him to testify, saying that he saw no occasion for the repetition of the testimony, as the defendant’s other witness was obviously telling the truth about it. Not only was there no evidence of Voorhis’ authority save such as might be inferred from his title (which was overcome by the testimony as to the limited nature of his powers), but the defendant was not allowed to show the details of the method of doing business of the defendant as between the purchasing agent and the general manager, and was not permitted to show that the general manager had not authorized Voorhis to purchase the machine in question from the plaintiff.

Beversible error was committed in the exclusion of the following questions: To Voorhis, as to whether he received instructions or authorization from the general manager to purchase the machine or order the same; as to what Hubert said to him in relation to the machine; and the refusal to allow defendant to show what actually transpired between Voorhis and the general manager in relation to this machine; to Hubert as to whether he ever said anything to Voorhis in regard to the purchase of the machine in question, and also as to the course of business in the year 1914 in relation to the purchase of materials and supplies between Voorhis and Hubert.

The judgment and order appealed from will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Clarke, P. J., McLaughlin, Scott and Davis, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  