Opinion
Argued June 24, 1885
Decided October 6, 1885
Adolph L. Sanger for appellants. W.C. Beecher for respondents.
The trial court refused to nonsuit the plaintiffs, and so held that the case stated and proved by them was prima facie sufficient to make the defendants liable. That conclusion has been sustained by the General Term and we think properly. The evidence showed that the plaintiffs were coffee dealers in the city of New York, and the defendants brokers in the same place. The latter were in correspondence with other brokers (Turnley Co.) of the city of Galveston, Texas, and prior to the 6th of March, 1882, received from them orders to buy a certain quantity of coffee for the firm of Marx Kempner, and a certain other quantity for Moore, Stratton Co. of Galveston. This was done, and bought and-sold notes describing the contracts as between the plaintiffs and these firms respectively were signed by the defendants in their firm name as brokers. It was apparent, therefore, upon the face of the paper that they were contracting on behalf of others and could not be personally liable as purchasers ( Fleet v. Murton, L.R., 7 Q.B. 126), but from such an instrument a contract is to be implied that they had authority to make it in behalf of the persons named ( Fairlie v. Fenton, L.R., 5 Ex 769), and on this the plaintiffs relied. They caused the coffee to be procured and at once taken to the dock for shipment as directed to the Galveston merchants, but on arrival at that place it was refused by them on the ground that the delivery in point of time was not in conformity with the orders. It then appeared that the orders actually given by them to Turnley Co. required in each instance a shipment on the 6th of March. This, however, was not communicated to the plaintiffs, nor made a part of the contract, nor was it in fact known to the defendants. They obeyed the order, as it was received from their correspondents, but they executed it in the name of the principals and so assumed the risk of its correctness.
First. The plaintiffs have no cause of action against the principals, for the order they executed was not their order. Hence it was given by the defendants in excess of authority, and there seems no reason why they should not make good all damages which the plaintiffs sustained in consequence of their belief that the authority assumed did in fact exist. ( Baltzen v. Nicolay, 53 N.Y. 467.)
Second. The contract was admitted by the pleadings, and was, moreover, sufficient in form to satisfy the statute of frauds. The defendants are held liable, because they had no authority to make it, and hence, though sufficient in form, it cannot be enforced against the apparent principal.
Third. The damages recovered were only those directly caused by the assertion of the defendants that they had authority. The amount was warranted by the evidence, and the question was submitted to the jury with proper instructions. Whether their verdict was excessive is not the proper subject for inquiry.
The order denying a new trial was not appealed from, and the only questions properly before us relate to the correctness of the judgment. In that we find no error and think it should be affirmed.
All concur.
Judgment affirmed.