
    (74 App. Div. 430.)
    DIAMOND SODA WATER MFG. CO. v. HEGEMAN et al.
    (Supreme Court, Appellate Division, First Department.
    July 8, 1902.)
    1. Attorney—Authority to Make Settlement—Question for Jury.
    Where a purchaser of a machine was dissatisfied with it, and wrote the seller that it was subject to his order, and, in an action for the price, had admittedly authorized its attorney to compromise the suit for
    7 1. See Attorney and Client, vol. 5, Cent. Dig. § 216. a certain sum, and the attorney made a settlement for that sum, and, in addition, agreed to return the machine, his authority to so settle was sufficiently shown to go to the jury.
    3. Sales—Remedies of Seller.
    In case the settlement was authorized, and the purchaser refused to return the machine, the seller was entitled to recover the value thereof, and the issue of value should have gone to the jury.
    Appeal from trial term, New York county.
    Action by the Diamond Soda Water Manufacturing Company against J. N. Hegeman & Co. From a judgment dismissing plaintiff’s complaint at the close of his case, and also from an order denying his motion for a new trial, plaintiff appeals. Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHEIN, JJ.
    Manuel Jacobus, for appellant.
    Gilbert Ray Hawes, for respondent.
   HATCH, J.

From the complaint in' the action it appears that the plaintiff in May, 1900, commenced an action against the defendant to recover the purchase price of a carbonating machine or apparatus which had previously been sold by the plaintiff to the defendant, and for which there was claimed to be due at the time of the commencement of the action the sum of $500, with interest. Issue was joined therein by the service of an answer, and thereafter, and in January, 1901, the action was settled, and the same was discoptinued. Thereafter a dispute arose as to the terms of the settlement, and thereupon the plaintiff brought this action to recover the value of the machine, which it is claimed by the terms of the settlement was to be delivered to. it. The whole point in the controversy between. these parties relates not so much to what were the terms of the settlement as to> the authority of the plaintiff’s attorney to make it. The evidence given upon the trial and the correspondence between the attorneys for the respective parties clearly show that Welch, the attorney for the defendant, in making the settlement for his client, agreed to pay to the plaintiff the sum of $150 and return the machine. Of this fact there can be no reasonable doubt. The .defendants paid the $150 pursuant to the terms of settlement, .but refused to deliver the machine; claiming that Welch was not authorized to make any other terms of settlement than the payment of $150, that he exceeded his authority in agreeing to return the machine, and that the defendants were not bound thereby. Upon the present trial the plaintiff called as a witness George W. Hopping, the president of the defendant, who testified that Welch was authorized to settle the lawsuit; and upon cross-examination he ■stated the terms of his authority to be to settle by paying not exceeding $150. Further testimony was given and correspondence introduced showing the terms of the settlement which in fact was made by Welch with the plaintiff, and this required that the machine should be -returned. When the plaintiff rested, the defendant moved to dismiss •the complaint; and the plaintiff asked to go to the jury upon the question as to the authority of Welch to make the settlement to which ¡he agreed, and als.o as to the value of the machine. The request was denied, the court granted the motion to dismiss the complaint, and from the judgment entered thereon the plaintiff appeals.

It may be conceded that an attorney, as such, has no authority, to compromise the rights of his client outside of his conduct of the action, or to accept less than full consideration for the claim sought to be enforced therein, or release his client’s rights, or subject him to a new cause of action. Lewis v. Duane, 141 N. Y. 302, 36 N. E. 322. When, however, the client constitutes the attorney his agent to settle and compromise the action, then the client is bound by the act of the' attorney to the extent of the authority conferred, and of such authority as the person with whom he deals has a right to believe him possessed; and if the party acts thereon, and. would sustain loss therefrom if such authority be denied, such person is justified in dealing upon the belief that the agent possesses the authority to the full extent to which he is held out as possessing. Walsh v. Insurance Co., 73 N. Y. 5. Upon making a settlement within the apparent scope of his authority, the principal whom he represents is bound thereby, and cannot subsequently shelter himself behind a restriction upon the authority of the agent, of which the party dealing had no notice or reason to believe existed, and which was not disclosed at the time of the transaction. Peru Steel & Iron Co. v. Whipple File & Steel Mfg. Co., 109 Mass. 464. Prior to the bringing of the first action, the defendants, being dissatisfied with the machine, wrote the plaintiff that they had the same at No. 9 East Fifty-Ninth street, and stated that it would be necessary for the defendant to take the machine there; and on May 4, 1900, the defendant wrote plaintiff’s attorneys (also prior to bringing the action) that the machine was in the cellar at No. 9 East Fifty-Ninth street, and had been held subject to the plaintiff’s order for a year or more; that they moved from such premises on May 1st, leaving the machine subject to the plaintiff’s risk; that, by communicating with a person in charge of the building, plaintiff ivould be able to obtain entrance to. No. 9 East Fifty-Ninth street whenever it was ready to take the machine away. It is clear from this correspondence that the defendant desired the plaintiff to take the machine,—indeed, that they had left it subject to the order of the plaintiff, and desired to exercise no further control over it, or retain it in their possession. Under such circumstances, the plaintiff had every reason to believe that, when the defendant constituted Welch its agent to settle the controversy, he was authorized to make an arrangement respecting the disposition of the machine, the purchase price of which was the subject of the action. Such question, if not conclusive upon the defendant, at least presented a question of fact for a jury as to the extent of Welch’s authority. If he had authority to settle, then it follows that plaintiff was entitled to recover the value of the machine in the event it was not returned. Upon these questions the plaintiff asked to go to the jury, and we-think it was error to refuse his request.

It follows that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.  