Bickford v. Menier

• Decision Date: 13 December 1887
• Citation: 14 N.E. 438,107 N.Y. 490
• Parties: BICKFORD v. MENIER et al.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 490

14 N.E. 438

BICKFORD

v.MENIER et al.¹

Court of Appeals of New York.

December 13, 1887.

Appeal from general term, supreme court, First department.

Elizabeth Bickford, plaintiff, sued Henri Menier, Gaston Menier, and Albert Menier, defendants, for money loaned, and obtained judgment for $8,471.21 in the supreme court, which the general term affirmed, and defendants appealed.

S. P. Nash, for appellants.

John B. Pannes, for respondent.

RUGER, C. J.

This action was brought by the plaintiff to recover of the defendants the sum of £1,200, alleged to have been loaned to them by her in the following sums, at the times mentioned, viz.: £200 in November, 1878; £200 in March, 1879; and £ 800 in May, 1879. Previous to these loans, the plaintiff does not appear to have had any personal or written communication with the defendants in respect thereto, but alleges that she loaned the money to one Edward Bickford, an alleged agent of the defendants. The loans were made at the city of New York, of which place the plaintiff and Edward Bickford, who were brother and sister, were both residents, and the defendants resided at Paris, in France. It it not claimed that Edward Bickford had any written power of attorney to borrow money for the defendants, or any positive unwritten or verbal authority to do so; but it is argued that the plaintiff had the right to imply such authority from the power which Edward Bickford appeared to exercise as the agent of the defendants. The power which such agent really possessed, and the scope of his agency, is left by the case altogether to be inferred from the course of business pursued by the agent, and the verbal agreementbetween the parties under which he entered into the employment of the defendants. That he was an agent for certain purposes is not disputed; but it is strenuously contended by the defendants that he had no power to borrow money.

The evidence as to the terms of the contract of employment, and as to the methods of transacting the business carried on under it, is quite vague and inconclusive, and we have been unable to discover therefrom any facts from which an intention, on the part of the defendants, to vest the agent with authority to borrow money in their names for the purposes of the business in which he was employed, can reasonably be derived. It was said by Judge COMSTOCK in Bank v. Railroad Co., 13 N. Y. 632, that, ‘underlying the whole subject, there is this fundamental proposition: that a principal is bound only by the authorized acts of his agent. This authority may be proved by the instrument which creates it; and beyond the terms of the instrument, or of the verbal commission, it may be shown that the principal has held the agent out to the world in other instances as having an authority which will embrace the particular act in question. I know of no other mode in which a controverted power may be established.’ This doctrine was somewhat extended in the case of Railroad Co. v. Schuyler, 34 N. Y. 30, where it was held ‘that when the authority of an agent depends upon some fact outside the terms of his power, and which, from its nature, rests particularly within his knowledge, the principal is bound by the representations of the agent, although false, as to the existence of such fact.’ Such extension of the rule, however, has no application to this case, as the facts proved do not bring it within the principle stated. It would seem to be the general rule that no acts of an agent can be resorted to to establish a power not included within the terms of his commission, except those which are brought to the knowledge of his principals, and are approved or acquiesced in by them. It was said by Judge ANDREWS in Walsh v. Insurance Co., 73 N. Y. 10, that ‘the authority of an agent is not only that conferred upon him by his commission, but also, as to third persons, that which he is held out as possessing. The principal is often bound by the act of his agent in excess or abuse of his actual authority; but this is only true between the principal and third persons who, believing, and having a right to believe, that the agent was acting within, and not exceeding, his authority, would sustain loss if the act was not considered that of the principal.’

A reference to the undisputed evidence in the case will show the nature of the agency intended to be created by the defendants, and the extent of the power which may fairly be implied therefrom. The rule that a principal is bound, not only by the acts of the agent which are expressly authorized by his commission, but also for the exercise of all powers which are necessary and essential to the execution and performance of the express purposes described in his commission, is assented to by the court below, and by both parties to the action. In view of this rule, let us look at the case for the purpose of discovering the real authority conferred.

The defendants were chocolate manufacturers, carrying on their business and residing in the city of Paris, France. They also had a branch factory and agency in the city of London, under the charge and management of one Emile Guenin. In and subsequent to 1868, Edward Bickford was a clerk in their employ in London; and in 1872, for certain reasons, deeming it desirable to establish an agency for the sale of their goods in New York, they made overtures to him to proceed there, and receive consignments and make sales of their manufactures, upon a salary. In relation to the original employment, Mr. Bickford testified as follows: ‘I came from London to New York to establish the house of Chocolat-Menier for these defendants. At first, I opened an office at 45 Beaver street, cleared the goods from the ship, and commenced selling their goods; and from that time forward up to 1882 I continued in business in New York city for them. During that time I made my returns and received goods from the London house. * * * When I came from London to New York to open this chocolate establishment, I brought no power of attorney with me. I had several cases of goods,-chocolate,-and I opened in the name of Edward Bickford, and the business was carried on in that name. I sold chocolate and other manufactured goods on a salary. * * * I opened books of account, and made returns from time to time: rendered accounts to Mr. Guenin, of London. * * * From that time down to 1879 I kept regular books of account, and a bank account in James G. King's Sons, also in the Bank of the Metropolis, in the Merchants' and Manufacturers', the Irving, and the New York National Exchange Bank. Those accounts were all kept in the name of Edward Bickford.’

These extracts from Bickford's evidence embrace all of the facts proved by the plaintiff relating to the character of the original employment, and the nature of the agency intended to be conferred upon Bickford. It will be seen therefrom that the sole authority actually conferred was the right to receive the property of the defendants; to store and sell it. An implied power may be derived from the express powers mentioned to apply such part of the proceeds of sale as was necessary to pay his salary and legitimate expenses required in carrying on the business. It follows, as a necessary consequence, that it was his duty to remit the balance to his principals. There is certainly nothing in the performance of these duties which rendered it necessary that Bickford should borrow money on the credit of his principals. It is idle to argue that an authority to borrow money may...