Roberge v. Monheimer

21 Misc. 491, 47 N.Y.S. 655

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1897
• Status: Published

Opinion

Bischoff, J.

The plaintiff has- recovered a- judgment, against .the defendant for services performed by him, as-a blacksmith, in shoeing two horses, at several times, during a period extending from April 4, 1892, to September 21, 1895, but upon examination of the return it appears clearly that the evidence was insufficient-to -supiport" a recovery based upon any agreement' by the defendant,- express or implied, to pay for the work.

>■ -Prior to April 4," 1892, the plaintiff-had shod these horses at the request of one Beamer, whose property they, were, but on or about, that date Beamer told him that he no longer owned them, having sold' them to the defendant.to whom-the ..cost of shoeing was to-be thereafter charged.

Mo payments upon account of the work were" ever made by . the defendant, but sums aggregating $175 were paid by'Beamer after April 4, 1892, and credited by the plaintiff upon the bill, which was finally rendered to the defendant in- September, 1896.

The record is destitute of evidence that Beameri was at any time authorized by the.-defendant to secure, the services of a .blacksmith for these horses, and the assumed agent’s own statement of his authority, without more, was of course ineffectual to impose liability upon another as his principal. Sier v. Bache, 7 Misc. Rep. 165.

Mor was- any agency to be implied in this case from -any acts of-the parties. : .

By no word or action did the defendant hold Beamer out as his agent; so far as appears he knew nothing of the circumstances, duying the period covered by the account, and the plaintiff never sought to discover whether in fact Eeamer had any authority to bind him during the whole time in question.

The judgment seems to rest solely upon the fact that the defendant was the nominal owner of these .horses when the work in suit was done, but if, from this, any presumption was to be indulged in of the acceptance of benefit from the plaintiff’s labor, still there was no proof that the defendant knew that such labor had been performed, and the fact that no benefit had been derived by him from the work was clearly shown by the defendant’s own testimony when called as a witness in behalf of the plaintiff.

It appeared that the horses in question were kept by Eeamer in the defendant’s boarding-stable prior to April, 1892, but at about that time a levy was made upon them under execution against Eeamer, at whose request they were purchased by defendant when sold by the sheriff.

Eeamer undertook to pay defendant the amount thus expended .by the latter, together with an outstanding indebtedness for the-board of the horses, the payment to be made in installments and the horses still to be boarded at defendant’s stable for an agreed rate,, with the right reserved to defendant that they stand as security for Eeamer’s promise to pay.

The use of the horses was wholly Eeamer’s during the entire-period, and the defendant’s actual dealings, with regard to them,, comprised only the furnishing of stable-room and feed.

TJpon this evidence it was obvious that the defendant was not liable for the claim, which arose out of Eeamer’s request for services in no wise connected with the defendant’s obligations touching these horses and which request was not actually in bis behalf or at his solicitation, and without the evidence thus given the plaintiff failed to show any connection between Eeamer and the defendant sufficient for this recovery.

It is noted that the plaintiff testified to an offer by the defendant, to pay $50 in settlement of the account which, as rendered, was. for $186, but it is evident from that testimony that the offer was. understood by the plaintiff to involve no recognition of the claim, and was made .for the purpose of stopping further dispute and litigation.

The circumstances, as detailed by the plaintiff, supported no inference of a ratification of Eeamer’s acts upon the defendant’s part or of an admission of liability for the work done at his request.

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

Daly, P. J., and McAdam, J., concur.

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