
    Augustus Levey, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed July 3, 1893.)
    
    
      Í. Corporations—Supplies—Authority op purchasing agent to contract por.
    The by-laws of a railroad company named the purchasing agent among the officers authorized to conduct its business; the by-laws required that the. comptroller of the company should be furnished with copies of alí written contracts for construction, supplies, etc., made by any officer or agent of the company with individuals; the by-laws defined the authority of the purchasing agent, which was to buy all materials and supplies-in general use in every department, excepting such articles the purchase-of which may be especially intrusted to others. Held, that the purchasing agent had authority to make contracts with individuals to supply the-company with stationery.
    2. Same—Contracts.
    The bids of an individual to furnish such railroad with all its stationery ■and the notification in writing of an acceptance thereof by the purchasing agent constitute contracts which require the individual to deliver-goods whenever called upon by the railroad’company within the period covered by the contracts, and impose upon the company the duty of ordering from the individual all of the goods covered by the contracts-which it requires and to pay therefor.
    Appeal from a judgment, entered on the verdict of a jury.
    
      Wingate & Cullen (George W. Wingate, of counsel), for respt; Frank Loomis (John F. Burrill, of counsel), for app’lt.
   Gildersleeve, J.

The assignor of the plaintiff was a. ■stationer, printer and blank-book manufacturer in the city of New York, and had been doing business as such with the defendant for more than thirteen years. The action was brought to recover damages for the breach of two contracts, viz; one to supply the defendant with all blank books if would require in its business, called in the testimony the “half bound book contract,”0 from June 1, 1883, to May 1,1884, and one to supply the defendant with all the “ printed blanks ” it would require in its business for the year 1884. The bureau of- defendant which, had charge of purchasing these supplies was the “ purchasing agent’s ” office,.and in 1888 the purchasing agent was Eichard C. Moore. His chief clerk was Frank P. Anderson. Defendant’s by-laws provide that its-business shall be conducted by certain officers, one of whom is a purchasing agent;” that such purchasing agent “ shall, under the-direction of the executive committee, or some one authorized by them, buy all materials and supplies in every department, except, such articles or materials the purchase of which may be especially entrusted to other parties; that he shall order for and furnish supplies to the various departments." Goods -of the character called for by the two contracts had been purchased for many years upon annual contracts, manufacturers being asked, in May of each year, to submit proposals for printed blanks for the year.. The printed blanks included about three thousand different forms. The alleged contracts required extensive preparations, such as procurement of paper of special manufacture, and the construction of thousands of sterotyped. plates, so that the plaintiff’s assignor accumulated large amounts of goods that were of little value, except to the defendant. When bids were received, they were examined by the purchasing agent and his clerk, and thereupon the purchasing agent, or, in his absence, his clerk, Mr. Anderson, notified the successful bidder that he was to nave the contract during the year, This was done sometimes' verbally and sometimes in writing.

The purchasing agent then notified the store-keeper “ who had the contract,” and the store-keéper sent the contractor samples of the goods that he would be required to manufacture. Thereafter, when requisitions were received by the purchasing agent, he, or Anderson, his clerk, would order the goods from the contractor, who would deliver them to the store-keeper, with a bill. The •contractor sent in monthly vouchers containing the items of all bills for the month, which were checked by the store-keeper, audited by the purchasing agent, and paid by the company. Clarence Levey, the plaintiff’s assignor, had been furnishing goods in this way for defendant for many years. In June, 1882, he had been the lowest bidder on the contract for half bound books by the year, and had received a written memorandum, admitted to have been signed by Moore, personally, stating that the contract was awarded to him. Under this contract, all these half bound books had been purchased from Levey during that period.

Following the method of business as above set forth, in May, 1883, Moore called for bids to furnish the defendant with its supply of half bound books for the year following the expiration of the contract which Levey then had. Levey, thereupon, put in the following bid: “ New York, May 15th, 1883, R. C. Moore, Esq., purchasing agent, N. Y. C. & H. R. R. R. Co., Dear Sir: In accordance with request, I herewith submit proposal for blank books for one year from June 1st next. Books, white paper, at 19|- ■ cents a pound: Books, manilla paper, 16£ cents a pound. Eespectfully yours, Clarence Levey.” In a few days after, Mr. Moore . directed his chief clerk, Anderson, to make Levey out a contract for the year from June 1st, 1883, to June 1st, 1884; which was done, being endorsed by Anderson on the back of the previous contract for these goods for 1882-3, signed by Moore, himself, which endorsement was in these words: “Gf. C. Depot, June 1st, ’83. Contract renewed at 16£ cents for all half bound manilla blank books, and 19£ cents for white, to June 1st, ’84. E. C. Moore, P. Agt., A.”

The second contract was as follows: “ In December’, 1883, Moore called for bids for “ printed blanks.” Thereupon, Clarence Levy sent in the following bid, which Moore told him, within a day after, he had received: “ 114 Fulton street, December 18th, 1883. Dear Sir: For the year 1884, I propose to furnish white blanks for 15§, and best manilla blanks, required quality, for 13J cents per pound. Eespectfully yours, Clarence Levey. R. C. Moore, Esq., N. Y. C. & H. R. R. R. Co.” On the 15th of January, 1884, Clarence Levey received the following in reply: “ Clarence Levey, Esq. You being the lowest bidder upon the printing contract for ensuing year, the same has been awarded to you to December 31st, 1884. R. C. Moore, A.” This was in Anderson’s writing.

In April, 1884, after the contract for half bound books had run for ten and a half months, and the contract for printed blanks had run for three and a half months, Moore notified Levey that he would not buy any more printing, stationery or blank books from "him; that the contract was broken. After April, defendant refused to give Levey further orders, and purchased its supplies of the kind of articles in question from others. This course left on Levey’s hands a large quantity of paper of special manufacture, stereotyped plates and goods which he had provided to perform these contracts, which were rendered practically useless.

The jury having been instructed as to what facts it was necessary for them to determine favorably to plaintiff, in order to entitle him to recover, rendered a verdict in his favor for $4,820. There is sufficient evidence to support the conclusions reached by the jury on the questions of fact; and if the instructions of the learned trial judge on the questions of law, intended to guide the jury in coming to its conclusions, are free from error, the judgment should stand.

Did Levey agree to furnish, and did the defendant agree to take, all the blank books and all the printing which the defendant would require in its business during the period covered by the writings that are claimed by plaintiff to constitute the contract ?' The acts done, if any, which, in connection with the acts of Levey, placed upon the defendant the obligation to take Levey’s, goods, were done by Moore. If the acts of Moore and Levey constituted valid contracts, were the contracts binding upon the defendant ? They were, because the acts of Moore were the acts of defendant, and the contracts, therefore, were defendant’s contracts, if Moore was acting within the scope of his duty and authority as an officer of the defendant corporation. The burden of proving that Moore had authority to make the contracts was upon the plaintiff, and the learned trial judge had to pass upon that question of authority as a matter of law. He decided sharply and squarely that Moore was an officer of the defendant corporation, and had authority to make the contracts.

The jury were told that the contracts were valid against the defendant, if made by Moore. All the jury had todo, on this branch of the case, was to determine whether Moore did or did not make-the contracts. The learned counsel for defendant strenuously urges-that this ruling was error. The authority of the purchasing agent to make contracts for the supplies required by the defendant does-not seem to have been seriously contested at the trial. During the-progress of the trial, defendant’s counsel stated: “ the fact that the-purchasing agent’s department made purchases is, of course, beyond controversy. That is what it was there for.” The question, however, is fairly in the case, and calls for discussion.

The by-laws of defendant name the purchasing agent among the officers authorized to conduct the business of the company. This vested in him general authority to conduct the defendant’s, business that fell within his department and within the line of his duties.

The by-laws require (subdiv. 16) tjiat the comptroller “shall be furnished with copies of all written contracts for (1) construction, (2) equipments, (8) repairs, and (4) supplies, made by any officer or agent of the company with individuals, etc., etc.” By this it is-seen that the by-laws clearly contemplate the making of written, contracts by its officers. The only duty imposed upon the comp-trailer by the by-laws, in respect of written contracts made by officers on behalf of the company, is that of keeping a record of such contracts. It does not appear that the officers are required to furnish the comptroller with copies of the written contracts for any other purpose. The authority of the purchasing agent is defined in subdivision 17, as follows: “ The purchasing agent shall, under the direction of the executive committee, or some one authorized by them, buy all materials and supplies-in general use in every department of the service, excepting such ártieles and materials the purchase of which may be especially entrusted to other parties. He shall order for and furnish supplies to the various dapartments on written requisitions of the heads thereof or of such other officer of the company as may be designated by the president or first vice-president. Such requisitions to be examined and approved by the auditing committee, to whom he shall certify all bills for purchases made by him.”

We are of opinion that the by-laws, as a matter of law, confer upon the defendant’s purchasing agent actual authority to make the contracts in question. Having reached this conclusion, it is unnecessary to discuss the force and effect of the evidence outside of the by-laws, as to which there is much, bearing upon the question of Moore’s apparent authority to execute the contracts in question. The contention of respondent’s counsel that Moore’s apparent authority was sufficient to authorize a third person, like Levey, who had for years dealt with him on the faith of his having such powers as naturally belong to the position of purchasing agent, to make the contracts, has strong support in both reason and law. Under the circumstances disclosed in this case the defendant corporation should not be allowed, to the detriment of a third person, to assert that its purchasing agent had not the authority in fact which he apparently had, and which he had for many years exercised unchallenged.

The bids óf the plaintiff’s assignor, and the notifications in writing of the acceptance thereof made by Moore as the general purchasing agent of defendant, constitute contracts which required the assignor of plaintiff to deliver goods whenever called upon by defendant within the period covered by the contracts, and imposed upon defendant the duty of ordering from the assignor during the same period all of the goods covered by the contracts which it required, and to pay therefor when delivered. Wells v, Alexandre, 130 N. Y., 642; 41 St. Rep., 334; Nixon v. Zuricalday, N. Y. Law Journal, March 9, 1893; 53 St. Rep., 66; Jugla v. Trouttet, 120 N. Y., 21, 28; 30 St. Rep., 182 ; Booth v. C. R. M. Co., 74 N. Y., 15; Mansfield v. N. Y. C. & H. R. R. R. Co., 102 id., 205; 1 St. Rep., 390; New Eng. Iron Co. v. G. E. R. R. Co., 91 N.Y., 165. This was substantially the ruling of the learned trial judge, and we believe it to be free from error. The breach by defendant was not disputed on the trial, and there is sufficient evidence to sustain the damages awarded to the plaintiff by the jury.

The question whether the relations to Moore of his chief clerk, Anderson, were such as to make his acts in legal effect Moore’s, was left to the jury under proper instructions, and on this question their verdict is conclusive, since it is sustained by sufficient evidence.

We find no error in the admission or exclusion of evidence, and consider the rules of law laid down by the learned court below, that controlled upon the trial, correct.

The judgment appealed from must be affirmed, with costs.

Freedman, J., concurs.  