
    The Thomas Roberts Stevenson Co., Appellant, v. Edwin D. Fox, Respondent.
    (Supreme Court, Appellate Term,
    January, 1897.)
    1. Payment — Agency.
    Payment to an agent who has authority to collect, whether made" in cash or in personal check, is payment to the principal.
    2. Agency — Authority to modify contract.
    One who has been held out as having general authority to bind the principal and whose act in making a sale at less than list prices has been ratified by the principal, has apparent or implied authority to make a modification of the bill on account of delays in performance of the contract.
    3. Variance — ITonprejudicial to be disregarded.
    A variance between pleading and proof which is not prejudicial should be disregarded.
    Appeal from judgment rendered by the justice of the Second judicial District Court in favor of the defendant.
    Phillips & Avery (Frank M. Avery, of counsel), for appellant.
    Charles W. Zaring, for respondent.
   Bisghoff, J.

This action was brought to recover the sum of $128, alleged to be the balance due the plaintiff over and above payments made by the defendant in a transaction involving the sale and delivery of twenty-four ranges at the agreed price of $22 each. The total cost, as agreed, was $528 and payments had been made, admittedly, of $400 in the aggregate.

In defense, payment was' pleaded and the justice below found such defense to have been substantiated by the proofs. Upon the facts in evidence, as detailed hereafter, we think that the conclusion reached was clearly correct.

It is conceded that but one individual appeared for. the plaintiff corporation in this transaction of sale to the defendant, the agent Renner, whose apparent authority, in negotiating the contract, in fixing modifications of the terms and in receiving payments, was very extensive; in fact it was exclusive.

He also attended to all the correspondence of the plaintiff with the defendant in the matter.

His actual authority, as admitted by the plaintiff’s own witness, was scarcely less comprehensive, this being to conclude contracts of sale, to correspond with purchasers in the name of the plaintiff and to '’collect payments.

True, the plaintiff’s witness stated that this actual authority to contract comprised authority only to contract for the sale of goods at the plaintiff’s list prices, yet in this very transaction the agent was held out to the defendant as having authority to materially modify such prices, he having concluded the contract so modified without consulting with any person, upon the defendant’s refusal to buy the goods at the list prices. The terms were thus modified and agre'ed upon by Renner as an apparent executive agent of the plaintiff, and the contract thus entered into was ratified by the corporation, which delivered the goods at the prices fixed thereby and at no time' disputed the contract, as not being its .own binding agreement.

As has been stated, 'payments to the extent of $400 were made by defendant to plaintiff, and this was all that the latter received.

The defense of payment was based upon proof that Renner, acting ostensibly for the plaintiff at the time when the last payment was due, agreed to the deduction of $28 from the bill, in view of certain delays in performance upon the part of 'the plaintiff, and received from defendant a check for $100, giving a receipt in full for the amount of the claim.

At Renner’s request this check "was made to his own order, and it was actually paid in due course by the defendant’s bank, but the money never reached the plaintiff, Renner having misappropriated the amount and decamped.

The judgment in favor of the defendant is assailed upon the grounds: (1) that a check to the agent’s order was not an authorized form of payment to the principal; (2) that, assuming the payment to have been proper, the • agent’s authority to modify the contract by the deduction of $28 froto the bill was not proven, and that there should have been a recovery by the plaintiff of $28; ■ (3) that under the defense of payment the defendant should not have prevailed, since an accord and satisfaction only was shown.

Against the appellant’s first contention appears evidence of express authority in Renner to colléct sums due his. principal, and, therefore, whether in cash or by personal check, the payment, if made to the agent in his capacity as such, was payment to the principal. Prochowick v. Boyd, 15 N. Y. St. Repr. 809; Mores v. Soc., etc., at Buffalo, 19 Week. Dig. 247; Cohen v. O’Connor, 5 Daly, 28.

The case of Bernheimer v. Herrman, 44 Hun, 110, relied upon by the appellant,' is not in point, since there the question was whether the check, made payable to the order of the creditor and paid by the bank upon a. forged indorsement by the creditor’s agent, was, in fact, a payment. It was very properly held in that case that there was no payment “ in due course,” since there was not a payment to or upon the order of the payee of the check, who, in that instance, was the principal. Here the check was paid in due course and the only inquiry had to do with the agent’s authority to receive it for the principal’s account. That authority, however, was abundantly established.

As to appellant’s second point, we think that the apparent authority of this agent was sufficiently extensive to have justified the defendant in believing him authorized to bind the plaintiff to a modification of the. claim in suit.

With the- acquiescence of the plaintiff the contract itself had been entered into by the agent, not upon the basis of the plaintiff’s price-list, but as a matter resting within the personal discretion of this agent as an executive agent, so far, with general authority to bind the plaintiff in the transaction.

Having been so held out, there was, we think, a sufficient agency, apparent or implied, to charge the plaintiff with the subsequent modification, the matter depending not upon the precise authority delegated, as between principal and agent, but upon principles of estoppel. Briggs v. Kennett, 8 Misc. Rep. 264; affirmed, 149 N. Y. 577.

Upon the further ground that this act of Renner’s, in modifying the contract and receiving the check for $100 .to his own order in discharge of the plaintiff’s claim, was ratified by the plaintiff, we have no hesitation in holding that the defendant was absolved from any further liability.

The payment was made in July, 1894, and knowledge of the circumstances was brought home to the plaintiff in October, 1894, at which time it communicated with defendant, asking him to lend it the check (paid by the bank), which had been drawn to Renner’s order for $100, that it might be used by plaintiff as evidence of its demand against Renner.

There was not the slightest intimation, that plaintiff did not consider itself wholly bound by Renner’s act, and not until March, 1895, about five months after this, was the present claim made. Upon familiar principles this clearly amounted tó a ratification.

The third point made, that there was a variance between the pleadings and the proof, was not presented by any objection taken upon the trial, and the issues were submitted for determination upon the- evidence adduced by both parties. The plaintiff was hot in the slightest degree prejudiced by this allegéd variance, there having been, apparently, no misunderstanding as to the facts of the matter; substantial justice was done, and under the circumstances of this case, the variance, such as it was, became immaterial, and it was the duty of the justice to disregard it. Code Civ. Pro., § 2943.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  