Brooklyn Daily Eagle v. Bertin Dellmar, Ltd.

30 Misc. 747, 62 N.Y.S. 1041

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1900
• Status: Published

Opinion

Per Curiam.

The defendant, who manufactures and sells a preparation for the hair, employed one Grotty, as salesman. He sold to the firm of Abraham & Strauss a quantity of the article manufactured by defendant, and agreed with said Abraham & Strauss that the defendant would advertise the wares in the plaintiff’s newspaper. Grotty had no express authority from the defendant to make any such agreement, and no such authority is to be implied from his employment as salesman. Tarpey v. Bernheimer, 16 N. Y. Supp. 870; Beck v. Donohue, 27 Misc. Rep. 230. It does not appear that Grotty ever notified the defendant of the agreement he had made with Abraham & Strauss, but he did go to the plaintiff’s office and give orders for the insertion of the advertisements, agreeing upon the price to be paid therefor, and directing that the bill should be sent to the defendant. After the advertisement had been set up in type one of plaintiff’s employees took a proof to the defendant’s office. He there saw some one who is not identified, and who may, or may not, have been an officer of the defendant. The proof then shown to this unidentified person was not produced on the trial, but it seems clear that it did not mention or refer to the defendant in any way. It described the article and announced that it was on sale at the store of Abraham & Strauss. There was nothing in the circumstances of this visit to indicate, to the person seen by the plaintiff’s agent, that there was any understanding that the advertisement was to be printed for the defendant’s account. That person, even if an officer of the company, might well have understood that the proof was submitted for the purpose of insuring accuracy in the description of the article. After the advertisement had been inserted once, a bill therefor was presented to the president of the defendant, and he at once declared that his company had nothing to do with it, and that, if it had been inserted by Grotty, he was the proper person to pay for it. It is difficult to see how ratification of Grotty’s action can be spelled out of this conversation. On the contrary, it appears that the defendant, through its president, at the very first opportunity repudiated the transaction. It was not bound thereafter to run after the plaintiff and reiterate the disclaimer. If, after this repudiation of the first bill, the plaintiff chose to go on and repeat the advertisement, it did so at its peril. We see no ground upon which the judgment in favor, of the plaintiff can be sustained. Grotty had no authority to make the agreement with Abraham & Strauss, and, even if he had, it was. not made for the plaintiff’s benefit, and it obtained no rights thereunder. Neither had Grotty any authority to bind the defendant by his unauthorized act in inserting the advertisement, for he had not even apparent authority to make advertising contracts for it. The defendant was not to profit by the advertisement, except in the very indirect sense that, if Abraham & Strauss had sold all of the preparation which they had bought,, they might have purchased more from the defendant. There was no subsequent ratification of Grotty’s unauthorized agreement with the plaintiff, but, on the contrary, the defendant expressly repudiated it as soon as a bill was presented.

The judgment appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide-event.