
    Adolphus F. Warburton, as Survivor, etc., Resp’t, v. John T. Camp, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    Principal and agent—When principal bound by act of agent.
    Where in an action between Heath and one Ingersoll and another it was agreed between Heath and Isaiah T. Williams and Royal S. Crane that they, .Williams and Crane, should have an interest to the amount of $10,000 in the claims against Ingersoll. Subsequently Williams and Crane assigned their interest to the defendant, on the promise of one Loomis, to whom the assignment was delivered, that the assignee should pay to the plaintiff’s decedent a certain sum due for stenographers fees out of the fund. Afier the assignment Crane had a conversation with the defendant and told him of the agreement with Loomis; the defendant replied that he was ignorant of any such agreement, but at the same time did not deny Loomis’ authority to act for him. On the trial it was found that Loomis was the agent of the defendant, and from the judgment entered thereon this appeal is taken. Held, that the failure of the defendant to deny the existence of any authority in Loomis, taken in connection with the other circumstances in the case amply sufficed for the finding of its existence, and upon such finding the plaintiff was entitled to recover.
    Appeal from a judgment of the New York superior -court, general term, affirming a judgment entered on a trial before the court without a jury.
    In 1877 the plaintiff was doing business with one Bonynge, since deceased, under the firm name of Warburton & Bonynge.
    The plaintiff, at the instance and request of one Heath, rendered services for said Heath during the years 1877 and 1878 in certain proceedings between Heath and one Loren B. Ingersoll and another.
    It was agreed between Heath and Isaiah T. Williams and Boyal S. Crane that said Williams and Crane should have an interest to the amount of $10,000 in the claims against Ingersoll, which were in the process of liquidation. Prior to August 22, 1878, the plaintiff had rendered services to the value of $186.48, which sum Crane had promised to pay. On that day Crane, who was the attorney for Heath,, also agreed with the plaintiff that he should receive that sum of money, with interest from any sums of money thereafter obtained from Ingersoll, and as attorney for Heath signed an instrument which purported to give to the> plaintiff a lien to that amount. In September, 1878, Heath was awarded $10,000. Plaintiff’s services were of the value of $900. On the 13th day of February, 1879, Williams and Crane assigned to the defendant, John T. Camp, their rights and interests in the $10,000,' on the promise of John S. Loomis, to whom the assignment was delivered, that the assignee should pay, among other things, $900 to the plaintiff’s decedent, and the assignment was taken by Loomis upon that, among other conditions.
    
      George W. Wingate, for app’lt; Alfred B. Cruikshank,, for resp’t.
    
      
       Affirming 14 N. Y. State Rep., 755.
    
   Per Curiam.

The assignment by Williams and Crane was made on the 13th of February, 1879, to the defendant,. John T. Camp, and by it the assignors assigned their rights and interest in the action in which the assignment was made, and the lien upon the sum of $10,000 therein referred to, _ on the promise of one John S. Loomis, to whom the-assignment was delivered, that the assignee should pay, among other things, $900 to the plaintiff’s decedent, and, the assignment was taken by Loomis upon that, among other conditions.

The learned trial judge found that in the transaction in question Mr. Loomis was the agent of the defendant.

Counsel for the defendant attacks this finding as being without any evidence to support it.

We think there was evidence upon which the finding could properly be based. After the assignment was made, Mr. Crane, one of the assignors, saw the defendant and had a conversation with him in regard to the claim of the stenographers, to be paid out of the moneys received from the award mentioned in the assignment, and in the course of the conversation Mr. Crane said to the defendant that Mr. Loomis and himself had agreed, when the assignment was executed, that the stenographers should be paid out of this fund, and that it was a part of the understanding that they should be so paid, and that Mr. Loomis had distinctly agreed that the stenographers should be so paid.

Quite a long conversation upon the subject was detailed by the witness,, and the defendant’s reply to this claim as made by Mr. Crane was given, in which he stated, among-■other things, that he did not know of agreement to pay the stenographer $900; that he had received such assignment in ignorance thereof, but that he would do what was right in ■regard to it. This question was then put to Mr. Crane in speaking of the interview at that time: “ Did he (referring to the defendant), at that time, deny Col. Loomis’ authority to act for him?” And the witness replied, Oh, no! he never denied his authority.”

While not holding that the mere omission to deny the authority of Mr. Loomis to make such an agreement was in any way conclusive upon defendant upon the question of such authority, yet the interview itself was upon such a subject, and the conversation detailed by Mr. Crane took such a course that it would have been very natural for defendant to have denied any such authority on the part of Mr. Loomis, if none such had existed, and it might fairly have been claimed before the trial court, that the omission "to deny or disclaim any such authority, was very strong ^evidence of its existence. Taken in connection with other circumstances in the case, it would amply suffice for the finding of the existence of such authority. The defendant indeed denies it, but that simply raises an issue of fact upon which the trial court was to decide, whether the inference of such authority ought to be drawn from all the evidence in the case, including the failure of the defendant to deny its existence at the interview in question, or whether the ■defendant, an interested party, should be regarded as having proved lack of authority by his own testimony to that ■effect.

The finding of the trial court, we think, had sufficient ■evidence to support it, and upon such finding, the fact that "the agent of the defendant made the promise to pay the ■stenographer’s fees to the amount of $900, as defendant’s agent, and as a condition of obtaining the assignment itself, renders the case a clear one in favor of the plaintiff.

The judgment should, therefore, be affirmed, with costs.

All concur.  