
    RIPLEY against COCHRAN.
    
      New York Common Pleas, General Term;
    
    
      November, 1870.
    Parties.—Apparent Agency.
    A. went to B.’s factory and selected and ordered a log to use on a certain job, saying, “ I will send a man for it;” but afterwards relinquished the job, and told C., who had undertaken the same job, that he could get such a log as he wanted at B.’s; and 0. went to B.’s factory, saying, “I want the log A. selected,” and upon that request obtained and used it for his own benefit. Held, that A. was liable to B. for the use of the log.
    Appeal from a judgment of a district court of the city of New York.
    It appeared by the evidence on the trial, that William Cochran, defendant, contracted with David Ripley & Sons, plaintiffs, for the use of a log to be used by Cochran on a job he intended to do at Elizabeth, N. J., on Westminster Church. Cochran obtained credit through a letter of introduction and recommendation from third persons.
    The log was selected and agreed upon between Cochran and plaintiffs’ bookkeeper, and it was agreed that defendant was to send word when he wanted the log, and send a man for it.
    About a week after the agreement, one Smith, who • had the Westminster job, but did not so state to plaintiffs, called on them and said he came for Cochran’s log —he wanted to see about the log Cochran had ordered. There was also testimony that the spring after the job was done, plaintiffs, on presenting the bill to Cochran, were told that “ Smith ought to pay for the log”—“if Smith did not, defendant would”—“wanted to get it out of Smith if he could”—“ that it was mean in Smith not to pay.”
    Mr. Justice Loew, before whom the cause was tried, gave judgment for the plaintiff, and defendant appealed.
    
      Daily & Perry, for the appellants.
    
      Chauncey B. Ripley, for the respondents.
    I. One who confers upon another an apparent agency to act, should bear the consequence of his assumed and wrongful acts, rather than the innocent person with whom he deals. The principal should be held responsible for the acts of his agent, performed within the scope of the apparent authority which the principal allows him to assume (32 Barb., 18; 35 Id., 467; 16 Id., 77; 44 Id., 469 ; 31 How. Pr., 97).
    II. Where one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it (Ct. of Appeals, 3 Keyes, 572 ; 28 How. Pr., 66; 39 N. Y., 441). If there is evidence of apparent authority, the question is not what power was intended to be given to the agent, but what power a third person had a right to infer, in dealing with him (Johnson v. Jones, 4 Barb., 369 ; 32 Id., 9).
    III. It must be presumed that the apparent authority is the real authority ; and an agent may bind his principal within the limits of the authority with which he has been apparently clothed (32 Barb., 9; 4 Id., 369). Where an agent fails to perform a.duty which his principal owes to a third party, the remedy is against the principal; he cannot sue the agent (5 Den., 639 ; 2 Id., 115; Phinney v. Phinney, 17 How. Pr.., 197).
   By the Court.—Joseph F. Daly, J.

The finding of the justice settles the fact, that Cochran went to the plaintiffs, selected a log and told them he would send a man after it. That afterwards Smith came to plaintiffs and asked for the log Cochran had ordered; that the plaintiffs delivered the log to Smith for Cochran, giving the latter credit for it on the strength of a letter of Thorburn & Waterbury, presented by him when he first came for the log; that Smith was not, in fact, the agent of Cochran, but was told by Cochran, that he could get at plantiffs’ a log of the proper size for the work he (Smith) was about to undertake, being the same work Cochran had in view when he went for the log.

The sole question is, whether Cochran, by any act, held out Smith to plaintiffs as his agent, so as to charge himself.

In my opinion he did. He knew he had left the plaintiffs’ promising to send a man for the log, and he must have known that his recommending Smith to go there after the same property could not fail to mislead the plaintiffs. It was his duty to have notified them that he did not want the log, but that Smith did, if he desired to avoid responsibility.

The judgment should be affirmed.

Charles P. Daly, Ch. J., and Robihsoh, J., concurrred.

Judgment affirmed.  