Ripley v. Cochran

10 Abb. Pr. 52

• Court: New York Court of Common Pleas
• Decided: November 15, 1870
• Status: Published

Opinion

By the Court.—Joseph F. Daly, J.

The finding of the justice settles the fact, that Cochran went to the plaintiffs, selected a log and told them he would send a man after it. That afterwards Smith came to plaintiffs and asked for the log Cochran had ordered; that the plaintiffs delivered the log to Smith for Cochran, giving the latter credit for it on the strength of a letter of Thorburn & Waterbury, presented by him when he first came for the log; that Smith was not, in fact, the agent of Cochran, but was told by Cochran, that he could get at plantiffs’ a log of the proper size for the work he (Smith) was about to undertake, being the same work Cochran had in view when he went for the log.

The sole question is, whether Cochran, by any act, held out Smith to plaintiffs as his agent, so as to charge himself.

In my opinion he did. He knew he had left the plaintiffs’ promising to send a man for the log, and he must have known that his recommending Smith to go there after the same property could not fail to mislead the plaintiffs. It was his duty to have notified them that he did not want the log, but that Smith did, if he desired to avoid responsibility.

The judgment should be affirmed.

Charles P. Daly, Ch. J., and Robihsoh, J., concurrred.

Judgment affirmed.