John P. Pearson and Alexander Pearson, Appellants, v. Liberty Avenue Theatre Company and Others, Respondents

John P. Pearson and Alexander Pearson, Appellants, v. Liberty Avenue Theatre Company and Others, Respondents. Second Department, October 11, 1912. Corporations — principal and agent — authority of president of corporation to make purchase —ratification. Where the president of a corporation buys materials for the purpose of improving its real estate and they are installed and the premises are subsequently leased by the corporation, it will be presumed that in making the purchase he acted within his authority. This because the appropriation of the goods purchased shows an approval of the contract by the corporation. Burr, J., dissented in part, with opinion. Appeal by the plaintiffs, John F. Pearson and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of November, 1911, upon the dismissal of the complaint at the close of plaintiffs’ case by direction of the court on a trial at the Kings County Trial Term. Clarence B. Campbell [Charles H. Hyde with him on the brief], for the appellants. Mortimer Fishel [Ferdinand W. Pinner with him on the brief], for the respondents. [MAJORITY — Thomas, J.:] Thomas, J.: The action is for goods and services in installing them in the Liberty Avenue Theatre. "Woods was president of each of the other defendants, and as president of the Liberty Avenue Theatre Company made a parol contract for the goods and confirmed it by letter, and the goods were placed in the theatre owned by the Liberty Avenue Theatre Company, and the deliveries were substantially completed before the A. H. Woods Productions Company took possession of it by lease, which, as its counsel concedes, was about February 7, 1910. While the counsel for the Liberty Company did not join in the concession, he did not dissent from it, but it is unfortunate that the lease was not produced as he suggested. The complaint was as to such defendant dismissed upon the ground that no authority was given to Woods to make the contract. But he did make it for his principal, the goods were delivered pursuant to his order and passed- to his principal’s lessee. If .the president of a corporation buys fittings for its place of business and they are placed therein and adapted thereto, and pass to its lessee, the principal’s conduct indicates that its president acted presumptively within the limits .of his powers, inasmuch as the appropriation of the objects of purchase shows approval thereof. The A. H. Woods Productions Company was not privy to the purchase, and Woods bought avowedly for the Liberty Avenue Theatre Company, and the plaintiffs, in the usual ways, recognized it as its customer. One of the two companies seems to have purchased the goods, and the proof fails as to the Woods Company. The judgment as to the other defendants should be affirmed, with one bill of costs, and reversed as to the Liberty Avenue Theatre Company, and a new' trial granted, costs to abide the event. Hirschberg, Woodward and Rich, JJ., concurred; Burr, J., concurred, except as to the Liberty Avenue Theatre Company, and as to that defendant read for affirmance. [CONCURRING-IN-PART-AND-DISSENTING-IN-PART — Burr, J. (dissenting in part):] Burr, J. (dissenting in part): I concur with Mr. Justice Thomas that the. judgment should be affirmed as to Albert H. Woods and the A. H. Woods Productions Company. I think that it should he affirmed also as to the Liberty Avenue Theatre Company. A paper was offered in evidence purporting to be signed in behalf of the Liberty Avenue Theatre Company by A. H. Woods, president, and was received over said defendant’s objection and exception. I think that this was error. It seems to have been assumed rather than proved that Woods was such president. But if we concede for the sake of the argument that he was, there is no evidence that the signature to the paper was in fact made by him or by his authority. There is some evidence to the effect that Woods told his brother to draw an order for furniture and carpets, and that at that time the paper in question was handed to one of the plaintiffs. It does not appear who handed it to him, or that Woods ever saw it, or that the paper was in conformity to the authority given by him to his brother. Upon the other ground referred to in the said opinion, viz., the date of the delivery of the goods, the complaint alleges that at the date of such delivery the Liberty Avenue Theatre Company was not in possession of the premises when the delivery was made, but that the A. H. Woods Productions Company was. This allegation the Liberty Avenue Theatre Company admitted. So far as the plaintiffs and this défendánt are concerned, this was not an issuable fact. If the proof to the contrary were clear (and it seems to me that it is not), no application was made to amend the complaint in this respect. As I understand the rule, while a pleading may sometimes be deemed amended in order to sustain a judgment, it may not be thus amended in order to bring about a reversal. Judgment affirmed, with costs; as to the A. H. Woods Productions Company and Albert H. Woods, and reversed and new trial granted, costs to abide the event, as to the Liberty Avenue Theatre Company.