Elias C. Salisbury, Survivor, etc., Respondent, v. Albert Brisbane, Appellant

Elias C. Salisbury, Survivor, etc., Respondent, v. Albert Brisbane, Appellant. (Argued May 19, 1874; decided September term, 1874.) Where two persons are appointed agents jointly to take charge of the business of their principal for a specified term, in case one of them becomes incapacitated, the business cannot be performed by the other alone without the consent of the principal, and the latter has the right to discontinue the agency. This action was brought to recover a balance alleged to be due upon a contract between the original plaintiffs, Elias O. and Guy H. Salisbury, and defendant. By the agreement, defendant employed said plaintiffs “ to jointly take charge of the Arcade building ” (a large building in Buffalo belonging to plaintiff) as his agents, for one year, and agreed to pay them therefor $500. Plaintiffs entered upon the performance of the agency, and after about one month had elapsed, plaintiff Guy H. Salisbury, in consequence of an accident, became incapacitated from discharging his duties as agent, whereupon defendant notified plaintiffs that he desired to discontinue the agency on that account, and did not wish the other plaintiff to continue alone, and proposed to settle up the same. This plaintiff Elias H. refused to do, insisting upon his right to go on under the contract-, and held himself in readiness to perform. Defendant appointed another agent. The question was as to the right to recover the contract-price subsequent to the notice. The referee decided that plaintiff was entitled to recover. Held, error; the court laying down the principle above stated, citing Oreen v. Miller (6 J. R., 39, 41); Sinclair v. Jackson (4 Cow., 43); Robson v. Drummond, (2 B. & A., 303). Samuel Hand for the appellant. Spencer Clinton for the respondent. [MAJORITY — Gray, C.,] Gray, C., reads for reversal. All .concur. Judgment reversed and new trial granted.