Opinion
Argued May 1, 1928
Decided May 29, 1928
Appeal from the Supreme Court, Appellate Division, Fourth Department.
Herbert A. Heminway for appellants. James O. Sebring for respondents.
The plaintiffs failed to supply potatoes corresponding in size or grade to those called for by the conditions of their written contract with George W. Perkins, the defendants' testator. There is no evidence for the plaintiffs that the defects were so few or slight as to justify a finding in their favor of substantial performance. To sustain their recovery they must show that the conditions of the contract were modified thereafter.
The modification relied upon is one that is said to have been permitted by one McGrath, acting or professing to act as Mr. Perkins' representative. We held, when the case was here on an earlier appeal ( Dudley v. Perkins, 235 N.Y. 448), that McGrath was at most a special and not a general agent, and that his authority to modify must be proved, not by his own acts or representations, but by the acts or representations of his putative principal. He had been employed to oversee the performance of a particular contract, not to modify its terms. A new trial has been had, and the case for the plaintiffs is no stronger than before. If anything, it is weaker, for the agent has been permitted to state the instructions of his principal. Neither by act nor by word did Mr. Perkins invest his assistant with authority to change the contract or release its obligations. The cause of action, therefore, fails.
On the authority of Dudley v. Perkins ( 235 N.Y. 448), the judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Judgments reversed, etc.