
    Charles E. Bonwell, Resp’t, v. John T. Howes, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 8, 1888.)
    
    1. Principal and agent—Employment oe sub-agents.
    Except where necessity requires, or a known usage of trade justifies the employment of sub-agents, an agent whose duties involve personal trust and confidence, and the exercise of judgment and discretion, cannot, without authority from his principal, delegate to another the confidence and discretion reposed in him. He may employ another to perform mere mechanical acts, but nothing else.
    3. Same—Brokers —Employment by agent to sell real estate.
    An agent to sell real estate has no right or power, without special authority, to employ a sub-agent or to bind his principal by an agreement that the sub-agent shall receive a commission.
    Appeal by defendant from a judgment of the general term of the city court of New York affirming a judgment of the trial term entered upon a verdict of a jury. The facts sufficiently appear in the opinion.
    
      R. H. Underhill, for app’lt; Edwin L. Kalish, for resp’t.
   Van Hoesen, J.

The motion for a dismissal of the complaint ought to have been granted.

It appeared that the defendant never employed the plaintiff’s assignor; never knew of such employment until after the exchange of the two pieces of property had been effected, and never authorized or ratified such employment. Of these facts there cannot be any question.

The evidence adduced by the plaintiff showed that Rogers, the plaintiff’s assignor, knew that Reuben W. Howes was acting as the agent for his son, John T. Howes, the defendant, in selling the Tenth avenue property, and that not until after the property had been exchanged for the Haberman property in Fourth avenue did Rogers ever have the slightest communication, directly or indirectly, with the defendant. There is no testimony to prove that the defendant was previously aware of Rogers’ employment. Upon this state of facts the court should have granted the motion to dismiss the complaint. Reuben W. Howes, who employed Rogers, was himself an agent to sell, and as such he had no right or power to employ a sub-agent, or to bind the defendant by an agreement that the sub-agent should receive a commission. Atlee v. Fink, 42 Am. Rep., 385.

It was said by one of the justices of the city court that the testimony established the fact that it was customary in New York to employ brokers to sell property. That is true but irrelevant, because the question here is, has one agent any authority to employ another? No proof on that subject was offered.

I understand the rule to be that ££ except where necessity requires, or a known usage of trade .justifies, the employment of sub-agents, an agent whose duties involve personal trust and confidence and the exercise of judgment and discretion, cannot, without authority from his principal, delegate to another the confidence and discretion reposed in him. He may employ another to perform mere mechanical acts, but nothing else. Lewis v. Ingersoll, 3 Abb. Ct. App. Dec., 60.

The jury probably regarded Reuben W. Howes as the real owner of the property, • and believed they were doing substantial justice in requiring the nominal owner, who holds real estate in his name, to pay the debt that the real owner contracted. But the testimony shows that Rogers. knew that Reuben W. Howes was dealing in the character of an agent. If he wished to hold the principal he ought, to have ascertained that Reuben had authority to employ a sub-agent, or else he should haye required some instructions from or had some communication with the defendant.

Hard cases ought not to make bad law; and I am of opinion that it would be dangerous to permit one agent to employ another at the expense of the principal.

Upon a new trial it may be shown that the principal knew that Reuben W. Howes intended to employ, or had employed a broker to assist him, and that he approved of the employment.

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

Larremore, Ch. J., concurs.  