
    Samuel K. Nester, App’lt, v. Thomas G. Craig, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    1. Principal and agent—Authority on agent to contract.
    Defendants, a Detroit firm,wrote and telegraphed to a factor in this state authorizing a sale of 16,000 bushels of barley at $1.50 net at that place. Said factor made a contract with plaintiff for the sale thereof at 80 cents a bushel delivered here at the rate of 2,000 bushels a week, to be paid for as each shipment arrived. The prices named in defendants’ letter and telegram were for 100 pounds ; while those"in the contract were for a bushel of 48 pounds. Held, that the contract as made was not within the authority of the agent, as the terms differed and extra responsibility was placed upon defendants.
    2. Same.
    The factor was a special agent for this transaction, and plaintiff was put upon inquiry as to the extent of his authority and dealt with him at the risk of his authority being exceeded.
    Appeal by the plaintiff from a judgment dismissing his complaint, entered on the direction of a non suit at the Ontario Circuit, and from an order denying his motion for a new trial on the minutes.
    
      D. B. Backenstose, for app’it; W. S. Hubbell, for resp’t.
   Dwight, P. J.

The action was for damages by the failure of the defendants to perform an executory contract- for the sale to the plaintiff of a large quantity of barley. The plaintiff was a malster at Geneva, Hew York, and the defendants composed the firm of Gillett & Hall, grain dealers at Detroit, Michigan. The contract of sale was made by one I. Blumenthal, a barley broker, assuming to act as agent for the defendants. His authority was derived solely from the following letter and telegram:

“Gillett & Hall, Grain Commission Merchants.
“Detroit, Sept 27 th, 1890.
Mr. I Blumenthal, Rochester, N. Y.
“ Dear Sir.—We expressed to you two samples and you can sell on sample A 6,000 bus. at $1.55 net here; B 10,000 bus. at $1.56 net here. The weight of the barley is 46-|- lbs., but as we let them go through the cleaner in elevator before loading the weight will come to 47 and over.
“Yours, etc.,
“ Gillett & Hall, D.”
“By Western Union Telegraph Co.
“Detroit, Mich., Oct. 21,1890. “ToI. Blumenthal, Com. Agt., Geneva, N. Y.
Will allow you to sell the two lots one fifty net, if not better, although the state is well cleaned out of barley and prices will shortly go much higher.
“ Gillett & Hall.”

The contract entered into by Blumenthal with the plaintiff was as follows:

“ Geneva, 10, 6, 1890.
“ Sold to S. K. Nester, Geneva, N. Y., 6,000 bushels sample A and 10,000 bushels of sample B Michigan state barley as per samples furnished me by Gillett & Hall, of Detroit, at the price of 80 cts. a bushel delivered track Phelps, N. Y., at the rate of 2,000 bushels a week, commencing Oct 20, (or faster if so ordered) till sale is filled, as stated in Mr. Dieterlie’s letter of September 27th. Barley to come recleaned and uniform. Payment to be made by New York exchange as soon as each shipment arrives.
“I. Blumenthal.
“ I accept above sale to me.
“S. K Nester.”

It was conceded that the prices named in the letter and telegram were for 100 pounds of barley ; while that named in the contract was for a bushel of forty-eight pounds. “ Mr. Dieterlie’s letter of September 27,” mentioned in the contract, was the letter of the defendants by “D.,” which is quoted above as defining the authority of the agent Blumenthal.

It seems very clear that the contract upon which the action is brought was not within the authority conferred upon the agent who assumed to make it. The authority was to sell for cash, on immediate delivery, at Detroit, at $1.50 per 100 pounds. The contract was for delivery at Phelps, N. Y., at intervals of a week ■during a period of more than two months, at eighty cents a bushel, payable in instalments after each delivery. These terms differ widely. Possibly the eighty cents per bushel might cover freight, insurance, storage, elevator charges, etc., in addition to the $1.50 per 100 pounds net, which the defendants were to receive, though even that is not demonstrated by the evidence ; but there are other substantial respects in which the terms of the authority, and of the contract differ. By the contract the -defendants were charged with the responsibility of carrying this large amount of grain for an average period of-five weeks, while they waited for their money and bore the risk of loss and damage by tire, or other causes, except so far as they might provide for their own indemnity by insurance. They must provide nearly $1,000 for freight charges and bear whatever risks of transportation are not covered by the liability of the common carrier.

Altogether it is difficult to see how the agent, who held only the authority conferred by the communications of the defendants of September 27 and October 4, could have assumed to make the contract with the plaintiff of October 6.

The plaintiff must be presumed to have known the extent and limitations of the agent’s authority, because the letter of September 27, which controlled that authority, is specifically referred to in the contract itself; but even if such were not the case, he is chargeable with such knowledge and limited by the terms of the authority actually possessed by the agent. He was a special agent, specially authorized for this transaction, and the plaintiff was put upon inquiry as to the extent of his authority, and dealt w-ith the agent at his risk of that authority being exceeded. Walsh v. Hartford Ins. Co., 73 N. Y., 10; Edwards v. Dooley, 120 id., 540-541; 31 St. Rep., 710 ; Michael v. Eley, 61 Hun, 180 ; 40 St. Rep., 597

There was no essential fact in dispute in this case. The question whether the contract was within the authority to make it was a question of law. We think it was correctly disposed of by the direction of a non-suit, and the judgment entered thereon must be affirmed.

Judgment and order appealed from affirmed.

Lewis, Macohber and Haight, JJ., concur.  