Deborah Marvin, Administratrix, etc., Respondent, v. David Wilber, Appellant

Deborah Marvin, Administratrix, etc., Respondent, v. David Wilber, Appellant. (Argued February 14, 1873; decided February 25, 1873.) Where the agent of a firm represents himself to be the agent of an individual member thereof, and, as such, makes a purchase of one who is ignorant of his real authority, and where the property purchased is received and used by the firm, the partner for whom the agent assumes to act is not individually liable for the purchase price. An agency cannot be created by the representations of an assumed agent, Appeal from judgment of the General Term of the Supreme Court in the third judicial department in favor of plaintiff, entered upon an order denying motion for a- new trial and directing judgment on a verdict. This action was brought to recover the purchase price of a quantity of hops alleged to have been sold to defendant. The answer set up, among other things, a defect of parties defendant in the omission to join George I. Wilber. The contract for the purchase of the hops was made by one Vosburgh, who represented himself as the agent of the defendant. He was,, in fact, the agent of a firm composed of defendant and said George I. Wilber, and had no authority to act for defendant individually. The hops were received and used by the firm. Defendant moved for a nonsuit on the ground of the non-joinder of the partner, which motion was denied and defendant excepted. The court charged that, if Yosburgh represented to plaintiff that he was acting for defendant, so that plaintiff understood he was acting solely for him, and if he never gave any notice to plaintiff, but that he was acting for defendant, the plaintiff could recover; to which defendant excepted. The jury rendered a verdict for defendant. Exceptions were ordered to be heard at first instance at General Term. E. Gount/ryman for the appellant. One man can be bound only by the authorized acts of another. (1 Parsons on Cont, 5th ed, 39, 40, 45 ; Stringham v. St. Nicholas Ins. Co., 3 Keyes, 280; Larter v. Am. F. Guard So., 1 Robt, 598; Lansing v. Coleman, 58 Barb., 611, Roome v. Nicholson, 8 Abb. [N. S.], 343; Kip v. Rowe, 39 How., 139 ; Mech. Bank v. N. Y. and N. H. R. Co., 13 N. Y., 600, 614, 632-637.) Neither the declarations nor acts of a man can be given in evidence to prove that he is the agent of another, or the extent of his powers. (Scott v. Crane, 1 Conn., 255 ; Plumstead's Lessees v. Rudebagh, 1 Yeates, 502, 505; James' Lessee v. Stokey, 1 Wash. [C. C.], 330; F. and M. Bank v. B. and D. Bank, 16 N. Y., 134-136 ; Griswold, v. Haven, 25 id., 599; N. Y. and N. H. R. Co. v. Schuyler, 34 id., 70, 73; North River Bank v. Aymar, 3 Hill, 262, 270; Westfield Bank v. Cornen, 37 id., 320, 322.) A party who trusts without inquiry, trusts to the good faith of the agent. (Story on Agency, § 133.) If the firm is liable on the contract made by Yosburgh, all the partners must be made parties to the action. (Wooster v. Chamberlain, 28 Barb., 602 ; Sweet v. Tuttle, 14 N. Y., 465 ; Hyde v. Van Valkenburgh, 1 Daly, 416; 1 Whittaker’s Pr. [3d ed.], 192.) L. L. Bundy for the respondent. The action was properly brought against David Wilber alone. (N. Y. Dry Dock Co. v. Treadwell, 19 Wend., 525; Clark v. Miller, 4 id., 628; Clarkson v. Carter, 3 Cow., 84; Herbert v. Post, 1 Bosw., 36, 37; North v. Bloss, 30 N. Y., 374, 380; Leslie v. Wiley, 48 id., 648, 652.) The representation made by the general agent is as binding on defendant as if made by himself. (6 Bacon’s Abr., 560; Dunlop’s Paley on Agency, 199; Scott v. McGrath, 7 Barb., 55; Jeffrey v. Bigelow, 13 Wend., 520; Booth v. Pierce, 40 Barb., 114; Witbeck v. Schuyler, 31 How., 97; S. C., 44 Barb., 469.) [MAJORITY — Peckham, J.] Peckham, J. One Yosburgh was an agent of Wilber & Son for the purchase of hops; he was agent of the firm only, not for this defendant severally. Waive any question of the statute of frauds for this purpose, and assume that he purchased of the plaintiff as agent of the defendant the hops in question; that such purchase was made expressly for the defendant, as thus stated by Yosburgh, although he had no authority so to purchase, is the defendant severally liable for such a purchase ? I know of no principle upon which such, an action can be maintained. The whole case is, that a person has assumed to act for another and incurs an obligation against him without authority, and we are asked whether such an obligation is valid. The plain answer seems to be, that the alleged principal never personally made such a contract, and the assumed agent never had any authority to make it. Hence, none was made by the defendant. But it is claimed that this action lies against defendant alone, upon the ground that a “ representation made by a general agent is just as binding on the defendant as if made by himself.” True, where he is acting within the line of his agency; but that assumes that Yosburgh was the general agent of the defendant, which is not true. If he were the general agent of defendant, of course he had the right to make this contract for him; but he was the general agent of the firm and not of the defendant, individually, at all. The assumption being wholly unfounded, the whole inference founded thereon fails. Yosburgh had no real authority from the defendant; none is pretended; and he was clothed with no apparent authority from him individually. An individual and a firm liability are very different things. They may be different to the creditor as well as to the firm; one may be solvent and the other not. The counsel cites many cases to sustain the decision of the trial judge, but they are all cases of dormant partners, who confessedly need not be sued, if the plaintiff did not know of the existence of the dormant partner. Such are the cases in 19 Wend., 25; 3 Cow., 84; 4 Wend., 628 ; 30 N. Y., 374; 1 Bos., 36. So, if a party purchase for himself, without disclosing that he had a partner, and the vendor was ignorant thereof, the action may be brought against the party alone who made the contract. So an agent can bind himself by not disclosing his agency, but he cannot bind a party for whom he is not an agent, no matter how much he assumes. He cannot create an agency by representations. This action would undoubtedly lie if it could be established that the agent of a firm to buy hops was therefore and thereby the agent of an individual member of that firm, authorized to buy for him and to make him individually liable therefor. But that position the plaintiff’s counsel has not attempted to establish. He cites no authority to that effect and takes no such position. He simply argues upon the assumption that Vosburgh was the agent of this defendant, and as such authorized to bind him as far as he could bind himself. The court must have acted upon that principle in its charge, that if the plaintiff did not know that Vosburgh was acting for the firm, but was informed that he acted for the defendant, that then the defendant was liable severally. This cannot be maintained. Ho amount of representations can create an agency. Any person may bind himself as he pleases. But to be bound by the act of another, that other must have real or apparent authority to do the act. In this ease, the assumed agent had neither. This defendant set up in his answer that his son was a necessary party, but the plaintiff refused to amend. The judgment should be reversed, new trial granted, costs to abide the event. All concur. Judgment reversed.