
    Louis Sier, Resp’t, v. James H. Bache, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    1. Pbincipal and agent—-special.
    An implied agency to receive payment does not include an authority to compromise a claim or to receive anything in payment but money.
    2. Evidence—Agency.
    An agency cannot be established by the declarations of the agent alone.
    Appeal from a judgment of the district court in the city of Mew York for the eleventh judicial district, rendered by the justice without a jury in favor of the plaintiff.
    Action for work, labor and services. The defendant set up the defence of payment and tender, and counterclaim, the basis of the defense being an alleged agreement by the plaintiff to pay defendant for certain medical services rendered to plaintiff’s servant. It appears that defendant had presented his bill to the plaintiff’s foreman or bookkeeper and also a check for $5.85, the difference between the defendant’s bill and that rendered for the claim now in suit by the plaintiff to. defendant; that the book-keeper endorsed a receipt of payment upon the latter and accepted defendant’s bill, receipted and the check. Thereafter the plaintiff returned to defendant such receipted bill and check and brought this action for the amount of the bill previously rendered by such plaintiff to defendant. The amount of plaintiff’s claim was admitted to be correct and the defendapt took the affirmative.
    
      I. Newton Williams, for app’lt; A. Lamont, for resp’t.
   Bischoff, J.

Nothing appears from the record in support of the appellant’s contention that the justice’s determination in favor of the plaintiff was based upon the provisions of the statute of frauds with reference to a verbal contract to answer for the debt of another. The question litigated was whether or not a contract to pay for certain services had been made, and upon this question the evidence was conflicting, and was not, we consider, of a convincing character in favor of the defendant sufficient to justify a reversal of the judgment on that ground. Weiss v. Strauss, 39 St. Rep. 78. It is urged that error appears in the rulings upon evidence. Under his defense of payment defendant offered in evidence, the plaintiff’s bill for the services which constitute the claim in suit, such bill having been receipted by plaintiff’s bookkeeper at the time when the defendant tendered his receipted bill for the services, performed under the contract sought to be proven by the defendant, together with a check for the difference between the two accounts. The tendered bill and check were accepted by the plaintiff’s book-keeper but were returned to the defendant by the plaintiff. It is not claimed that they were not returned in due season. These two bills and the check were excluded by the justice, as was also certain evidence as .to the conversation between defendant and the book-keeper at the time of the alleged payment. The exceptions taken to these rulings do not present error. There is no proof that the book-keeper was the plaintiff’s general agent The defense rents upon an implied agency to receive payment, a special agency merely, and it is uniformly held that this does not include an authority to compromise a claim or to receive anything in payment but money. See Story on Agency, § 99 ; Ward v. Smith, 7 Wallace (U. S.) 451. By ratification alone, then, could the agent’s act in this case bind the principal, and here the act was repudiated by the plaintiff by his returning the defendant’s receipted bill and check, and, therefore, the documents offered were incompetent, the foundation for their admission as evidence to charge the plaintiff not being established. There being thus no extrinsic circumstances to establish the agency in this regard, the conversations between defendant and the book-keeper, in the absence of plaintiff, were inadmissible since agency could not be established by the declarations of the agent alone. Peoples' Bank v. St. Anthony's Ch., 109 N. Y. 525; 16 St. Rep. 856; Snook v. Lord, 56 N. Y. 605 ; Fowler v. Howe Machine Co.. 20 W. Dig. 521; Woods v. Franklyn, 46 St. Rep. 396; 19 N. Y., Supp. 376.

Judgment affirmed, with costs.  