
    Lestershire Lumber and Box Company, Appellant, v. Edgar W. Minter, Respondent.
    Third Department,
    November 12, 1913.
    Principal and agent — action to recover for goods ordered by defendant’s agent — evidence — ratification of acts of agent.
    Where, in an action to recover for doors sold and delivered, it appeared that one C. submitted plans and specifications for doors to the plaintiff, asked prices and directed them to be invoiced to the defendant; that plaintiff shipped them to the defendant with an invoice showing that they were ordered by 0.; that the defendant, after receiving the doors, asked the plaintiff to change some of them, which he did, and that the court refused to allow plaintiff to show a conversation between himself and 0. at the time the order was given, offered not for the purpose of establishing the fact of agency, but as tending to prove the ratification of C.’s acts by the defendant, a judgment dismissing the complaint upon the ground that there was no evidence of agency should be reversed and a new trial granted.
    Appeal by the plaintiff, the Lestershire Lumber and Box Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 20th day of January, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 5th day of February, 1913, denying the plaintiff’s motion for a new trial made upon the minutes. Plaintiff also appeals (as stated in the notice of appeal) from the decision of the justice entered in said clerk’s office on the 20th day of January, 1913.
    
      Stewart & Kelley [Frank G. Kelley of counsel], for the appellant.
    
      Walter H. Dodd, for the respondent.
   Kellogg, J.:

The action is to recover for lumber sold and delivered. The plaintiff manufactures sash, doors and blinds at Lestershire, K. Y. ' The defendant was building a house for Mr. Chapman at Douglastown, L. I. One Champion submitted plans and specifications for doors for this house to the plaintiff and asked prices for the work. The plaintiff submitted prices to him and he directed the doors to be invoiced to the defendant for the amount, and asked the plaintiff to send him a draft of $10.60, his profits on the order. The plaintiff shipped the doors to the defendant, with an invoice showing that the plaintiff had sold them to defendant for $116, “Terms: 2% 10 net 30,” and that they were ordered by Champion. The defendant received the doors and wrote the plaintiff that some of them were defective, or not according to contract, and asked if the plaintiff would change them by August ninth, otherwise he would have them made and charge the same to plaintiff’s account. The new doors were made and shipped to the defendant.

The plaintiff offered to show the conversation between Champion and the plaintiff at the time the specifications were submitted and the order given. This was objected to as incompetent and that Champion’s declarations could not bind the defendant, which objection was sustained. The plaintiff offered this evidence, not for the purpose of establishing the fact of agency, but as tending to prove the ratification of Champion’s acts by defendant’s receiving and using the doors.

The court nonsuited the plaintiff upon the ground that there was no evidence of agency. I think this was clearly an error. Champion ordered the doors to be shipped and invoiced to the defendant. They were invoiced to the defendant and he was informed that they had been ordered by Champion. He received and used them and requested changes with reference to some of them. There was evidence that Champion was authorized to act for the defendant and that the defendant had ratified his acts in making the purchase.

The judgment should be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event, the court holding that there was evidence sufficient to go to the jury.  