
    Thomas Maloney, Appellant, v. The Hudson River Water Power Company, Respondent.
    Third Department,
    June 24, 1909.
    Principal and agent — liability of corporation for acts of ofilcer settling cause of action — evidence — oral proof of consideration for release.
    Where a corporation authorized its auditor and manager to settle a claim for personal injuries, it is bound by his acts if he made the settlement while acting within the scope of his apparent authority and the person with whom the settlement was made had no knowledge of any limitation placed upon his authority.
    Thus, where such officer was authorized to settle a claim for personal injuries for §250, and in addition to paying said sum agreed that his corporation should pay bills for medical attendance and maintain the plaintiff so long as he was physically unable to care for himself by reason of the injuries suffered, and the latter in consideration of such promise executed a general release, he is entitled to maintain an action on the failure of the corporation to maintain him during such period. It is error to nonsuit on the ground that the agreement for support was not binding upon the principal.
    A general release of his cause of action executed by the plaintiff does not represent the entire agreement between the parties, and he may show by parol that the oral agreement to support him was part of the consideration for the release.
    Appeal by the plaintiff, Thomas Maloney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 31st day of October, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Warren Trial Term.
    
      John E. Sawyer and Charles R. Patterson, for the appellant.
    
      Austin & Russell, Abram J. Rose and Thomas J. Keenan, for the respondent.
   Cochrane, J.:

On or about October 17, 1900, the plaintiff, while in the service of the defendant at Spier’s Falls, received severe and permanent personal in juries. He was taken to a hospital in Glens Falls and was there visited by Mr. Pedrick, the auditor of the defendant company and the manager of its works at Spier’s Falls. He inquired of plaintiff if he intended to bring an action against the company for negligence, and said that the company did not want to have a law suit. According to the testimony of the plaintiff he and Pedrick made an oral agreement that if the plaintiff would not bring an action against the defendant for negligence the latter would pay him $250 and take care of him until he was able to take care of himself.' Some time thereafter and on November 12, 1900, defendant paid plaintiff the $250, and the latter executed an instrument releasing the defendant from the alleged cause of action for negligence.. The defendant thereafter sent the plaintiff to the New York Post-Graduate Hospital for surgical treatment, and paid liis expenses there and traveling expenses and hotel bills. It also paid his expenses at the Glens Falls Hospital and paid various amounts for medical treatment and board aggregating nearly $1,400, including the hospital bills.' It has paid.nothing, however, since the year 1903. Plaintiff is physically unable to maintain and care for himself as the result of the accident. Because of the refusal on the part of the defendant to maintain him since tlie year 1903 he has instituted this action to recover damages for the breach of the said alleged oral agreement.

It is first insisted that Pedrick had no authority to bind the defendant by the oral agreement sought to be enforced herein. He was the. auditor of the defendant and it is undisputed that he was authorized by its president to settle the alleged cause of action for $250. . But it is claimed that in - making the additional agreement to support and maintain the plaintiff he exceeded his authority. Considerable amounts were in fact paid by- defendant apparently in tlie partial execution of such agreement of its auditor. Defendant had no right to expend its corporate funds gratuitously, aiid we can scarcely indulge in the presumption that such was its motive in making those payments particularly in view of plaintiff's testimony that he had an agreement whereby they were to be made. There are in evidence letters from the defendant to the plaintiff in answer to his letters directed to the defendant itself relative to his removal from the New York hospital to Glens Falls at the expense of the defendant-, which letters of the defendant quite clearly indicate that such removal was effected by it, not as -a gratuity, but in recognition of a duty which it owed to the plaintiff. The defendant authorized Pedrick to settle the claim and the latter was acting within the scope of his apparent authority and without any knowledge on the part of the plaintiff of the limitation on the authority of the agent Pedriek. In Diamond Soda Water Co., v. Hegeman & Co. (74 App. Div. 430) it was said: “Upon making a settlement, witiiin the apparent scope of his authority,' the jn’incipal 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.) ” I think, therefore, there was sufficient evidence to go to the jury as to whether or not th,e defendant was bound by Pedrick’s agreement.

Another ground urged for sustaining the dismissal of the complaint is that the release represents the entire agreement, and that the evidence that defendant agreed to maintain and take care of the plaintiff is inconsistent with such release and contradicts and varies the effect of a written instrument. The release does not represent the entire agreement between the parties, but merely that part which plaintiff agreed to do. It was a part of the agreement that plaintiff should release his cause qf action for negligence. He executed the release in question in performance of his agreement. It was in consideration of that agreement performed by him that defendant agreed to pay $250 and in addition thereto to support the plaintiff during his infirmity.

In Andrews v. Brewster (124 N. Y. 433) the defendant’s testator had been charged by plaintiff with negligence in failing to rent certain real estate belonging to an estate of which, the former was executor and in which plaintiff' was interested. An oral agreement was made between the executor and the plaintiff whereby the former paid to the latter the amount, of her interest in the real estate and promised to leave her by will a specified portion of his own estate, and plaintiff thereupon executed to the executor a conveyance of her interest in the real estate and also a release of all claims which she held against him. The latter having failed to make provision in his will as agreed an action was brought against his executors on such oral agreement. The court said: “ The release did destroy and discharge the testator from all claim against him for his neglect and failure to lease the buildings in question. That was its purpose, and that it should have that effect was the intention of both parties. And no recovery could now be had by the plaintiff upon that claim. But it is out of the delivery of that release that the agreement now sued upon arose. It had its inception with the negotiation leading to the execution of the release and sprang into existence with its delivery, and it is.because the plaintiff, at the testator’s request, destroyed and released that claim that she may sue on the contract she now asserts. The whole agreement with reference to the settlement of Christopher Starr Brewster’s estate rested in parole,' and the execution and delivery of the release was in part execution of that agreement. It was not the repository of the agreement between the parties, but its execution and delivery was one of the obligations under that agreement. The respective promises and obligations of the parties were mutual, and those of one party formed the consideration for the other. * * * The rule that excludes parol evidence tending to contradict or vary. a. written" contract had, therefore, no application to the case.”

Wenz v. Meyersohn (59 App. Div. 130). was a case wdiere the defendants agreed that if the plaintiff would settle a foreclosure ■action for eleven hundred dollars and execute a general release they would pay plaintiff thirty dollars additional. Plaintiff executed the release and defendants thereafter refused to pay the thirty' dollars. It was held that the thirty dollars was part of the consideration for the release, the court saying: “ The complication is'due to the fact that the plaintiff, instead of tendering the release with one hand and holding out the other for the entire' consideration, trusted the defendants for the payment of the thirty dollars — gave them credit therefor. Upon default by them she was entitled to sue to enforce that payment. (Szymanski v. Chapman, 45 App. Div. 369, 371.) The parol testimony is not objectionable as altering or modifying"the release, for it but tended to establish that the full consideration therefor was not paid, and did not afféct the force of the release.”

■ In the SzymansM case, cited in the last quotation, a release had been executed by an employee: to his employers of a cause of action for personal injuries sustained through their alleged negligence and the defendants having failed to keep an agreement that they would give employment to the plaintiff, it was held that the plaintiff could not in disregard of his release institute an action for negligence, but the court said : “ If the defendants agreed to furnish work as a part of the consideration for the settlement of the plaintiff’s claim against them, the plaintiff can recover in a proper action such damages as he has sustained by the failure of the defendants to perform such agreement.”

Applying the principle of those cases a reversal of this judgment-must follow. The consideration of a written instrument may generally be the subject of an inquiry.' The consideration of the release - in this case was not merely the $250 but such further sum as was necessary to support the plaintiff as the result of his injury. Plaintiff made out a case for the consideration of the jury and the dismissal of his complaint was error.

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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