
    SAGE et al. v. SHEPARD & MORSE LUMBER CO.
    (Supreme Court, General Term, Third Department.
    February 13, 1894.)
    Reference—Action on Contract.
    Where a complaint states that plaintiff waives the tort, and sues on the implied contract arising from the facts alleged, the action will be deemed to have been brought on a contract, and may be referred.
    Appeal from special term, Albany county.
    Action by Henry W. Sage and others against the Shepard & Morse Lumber Company to recover for certain lumber alleged to have been sold to defendant. From an order of reference, defendant appeals. Affirmed.
    The two causes of action set forth in the complaint are as follows:
    First. These plaintiffs allege, upon information and belief, that heretofore, and on and between the 1st day of June, 1885, and the 3d day of December, 1890, they had in their employ, as a traveling salesman, one Joseph B. Abbott. That said Abbott was authorized to sell the lumber of these plaintiffs in the following manner, and none other, that is to say: To sell such lumber as hereinafter referred to at not less than certain fixed prices and on certain terms, which said prices and terms were given said Abbott by these plaintiffs, and at which prices and on which terms only he was authorized to sell and dispose thereof. That said Abbott was further authorized by these plaintiffs to take orders for lumber, and to report the same to said plaintiffs for acceptance or refusal by them. That heretofore, and on or between the 1st day of June, 1885, and the 3d day of December, 1890, said Abbott reported to these plaintiffs that he had sold to the defendant certain lumber of these plaintiffs at the prices and upon the terms at which he was authorized so to do. That the terms on which said Abbott was authorized to sell said lumber were a credit of sixty days, with 1% per cent, off for cash in ten days. That these plaintiffs never authorized any sale of said lumber or any lumber to this defendant by said Abbott, at any different price or upon any different terms from those so reported by the said Joseph B. Abbott. That said lumber was delivered to this defendant, and charged to it by the plaintiffs, at said prices and on said terms. That defendant had notice of the only terms, as aforesaid, upon which said Abbott was authorized to sell said lumber at the times of the dealings therefor between it and said Abbott. That said lumber, at the prices so reported by the said Abbott, and at which it was charged to said defendant by these plaintiffs, was of the value of one hundred and one-thousand two hundred and fifty-seven dollars and fifty-three cents, ($101,257.53.) That said lumber was reasonably worth said sum of one hundred and one thousand two hundred and fifty-seven dollars and fifty-three cents, ($101,257.53.) That said defendant has heretofore,' and prior to the beginning of this suit, sold and parted with the possession of said lumber, and all thereof. That said defendant has not paid to these plaintiffs said sum of one hundred and one thousand two hundred and fifty-seven dollars and fifty-three cents, ($101,257.53,) or any part thereof, except the sum of ninety-six thousand one hundred and seventy-three dollars and ninety cents, ($96,173,-90.) And that there is still due and owing these plaintiffs from the defendant, on account of said lumber as aforesaid, the sum of five thousand and eighty-three dollars and sixty-three cents, ($5,083.63,) with interest thereon from December 3, 1890, which said sum the defendant has refused, and still refuses, to pay these plaintiffs. Wherefore, there is now due and owing these plaintiffs, on account of the above facts, file sum of five thousand and eighty-three dollars and sixty-three cents, ($5,083.63,) with interest thereon from the 3d day of December, 1890.
    Second. And for a second, further, and separate cause of action, these plaintiffs allege, upon information and belief, that heretofore, and at various times, on and between the 1st day of December, 1888, and the 1st day of May, 1889, this defendant, without the authority, knowledge, or consent of these plaintiffs, illegally, wrongfully, and tortiously acquired possession of certain property belonging to said plaintiffs, and with the title to which these plaintiffs had never parted, and of which property they were lawfully possessed, consisting of lumber, which said property or lumber was of the value and reasonably worth the sum of twenty-nine thousand seven hundred and seventy-eight dollars and. ninety-eight cents, ($29,778.98.) That the defendant has converted the said lumber to its own use, and has sold the same. And that said defendant has refused, and still refuses, to pay these plaintiffs therefor, or for any part thereof. And that these plaintiffs have elected, and do elect, to waive the torts committed by said defendant in the taking of said property, and in the converting of said property to his own use, and to bring this suit against said defendant as upon the implied contracts arising on the above alleged facts. Wherefore, there is now due and owing to these plaintiffs, on account of the above facts, the sum of twenty-nine thousand seven hundred and seventy-eight dollars and ninety-eight cents, ($29,778.98,) with interest thereon as follows: On the sum of $468.73 thereof, from December 31, 1886; on the sum of $2,366.27 thereof, from December 31, 1887; on the sum of $2,579.64 thereof, from May 31, 1888; on the sum of $8,226.58 thereof, from June 30, 1888; on the sum of $2,880.18 thereof, from July 31, 1888; on the sum of $478.48 thereof, from August 31, 1888; on the sum of $531.56 thereof, from September 30, 1888; oil the sum of $2,407.65 thereof, from December 31, 1888; on the sum of $2,110.31 thereof, from January 31, 1889; on the sum of $4,019.96 thereof, from February -28, 1889; on the sum of $2,855.14 thereof, from March 31, 1889; on the sum of $854.48 thereof, from April 30, 1889.
    Argued before MAYHAM, P. J., and PUTNAM,°J.
    Hale & Bulkeley, (Alpheus T. Bulkeley, of counsel,) for appellant.
    Tracey & Cooper, (James Fenimore Cooper, of counsel,) for respondents.
   PUTNAM, J.

In this case we deem an opinion unnecessary. Under, the pleadings, plaintiffs, on the trial, will be compelled to show the delivery of the various items of lumber for which the action is brought. It is not denied that the account set out in the first cause of action in the complaint consists of 147 items, and in the second 295 items. Plaintiffs, on the trial, must establish, before resting, each of the items, showing the delivery of the lumber, and the price at which the same was sold, or the value thereof.

It will not be practicable, under the pleadings, to try the question of the power of Abbott, and of defendant's knowledge of the limitations of that power, separately. The question as to whether defendant had notice as to the power of Abbott, plaintiff’s salesman, is not, properly, an issue in the action. The evidence given in that regard will bear on the real issue,—the price at which the lumber was sold, or whether any price was agreed upon. We do not think that difficult questions of law are involved in the case. The questions to be tried are of fact.

As to the second cause of action in the complaint, plaintiffs having waived the tort, it is to be deemed a cause of action on contract, and referable* Had defendant, in the answer, admitted the delivery to it of the several items of lumber set out in the complaint, averring that it purchased said lumber at a specified price, which had been paid, it may be that a reference should not have been directed. As it is, plaintiffs, as a part of their case, must show, before resting, the delivery of over 400 items of lumber, and the price or value thereof. We think the order should be affirmed, with costs.  