Remer v. Brown

• Decision Date: 22 January 1901
• Parties: DE REMER v. BROWN et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 410

59 N.E. 129

DE REMER

v.BROWN et al.

Court of Appeals of New York.

Jan. 22, 1901.

Appeal from supreme court, appellate division, First department.

Action by James R. De Remer against Willard Brown and Charles W. Wells. From an order of the appellate division (55 N. Y. Supp. 367) overruling the exceptions to defendants' order to be heard by that court, and ordering a judgment on a directed verdict, and from a judgment entered thereon, defendants appeal. Affirmed.

Appeal from an order of the First appellate division, which overruled the exceptions of the defendants, ordered to be heard by that court in the first instance, and ordered judgment upon a directed verdict, and from the judgment entered thereon. In September, 1890, the defendants, lawyers and residents of the city of New York, went to Denver, where they met Edwin H. Kellogg, a civil engineer. During the previous year Kellogg had made a preliminary survey of lands in New Mexico, which the defendants were desirous of acquiring for themselves or for others. An interview took place between the defendants and Kellogg in regard to such lands, and a further survey of them, and when they left Denver it was with an understanding that they would notify him if they desired him to make a further survey. After their separation the defendants wrote Kellogg that they had made an arrangement as to the lands, and expressed a desire to have him proceed as early as possible to make the necessary survey, so as to put under contract for speedy completion a ditch for the irrigation of about 5,000 acres of land for alfalfa. They also advised him to consult Mr. Slattery as to location and other matters, and notified him that drafts upon them for his expenses and other disbursements would be honored. As a result, Kellogg left Denver, September 28, 1890, and began the suggested survey. It was completed in the early part of December, and on the 13th of that month, at the request of the defendants, he came to New York, where he remained until the 20th. There was a voluminous correspondence between Kellogg and the defendants prior to the execution of the contract in suit. In a letter from Kellogg to the defendants, dated September 18, 1890, the former requested information from them as to the name of the company; if a corporation, under what law organized; to whom he was directly responsible; to whom he should report his operations; and whether they would have any other agent in New Mexico, and, if so, his status as to him. On September 22d the defendants replied to Kellogg's inquiry as to the name of the company, etc.; that he would regard himself as responsible to Brown & Wells only; that they would meet the financial wants of the organization, which was not, and for some time could not be, completed; and that they could not say whether they would have any other agent in New Mexico. They then discussed the question of his salary, and added that they could not reply to the last paragraph of his letter, as no organization had yet been made, and it would be premature to announce his official appointment; that they did not consider it necessary to announce it to anybody, as nobody was concerned but themselves and Kellogg; and that what they had already said would give him authority to make purchases of the necessary material and to employ the necessary labor. On December 27th Kellogg again wrote, asking the defendants to give the corporation or association name to be used in the contracts and vouchers. To that the defendants replied: ‘We think, upon full consideration, that you had better make the contracts and vouchers in the name of Brown & Wells, and we can assign them to the ditch company as soon as we understand the legal requirements are in shape. When they are, the work can be done for the benefit of the Bell Ranch Ditch Company. * * * We understand that we have already given you authority to make the contracts for the building of the ditch, as agreed upon here; but, so far as you may need such authority in writing, let this be sufficient.’ In the following February the surveys and preparations had been sufficiently proceeded with to enable bids for the construction of the dam and canal to be called for, which was accordingly done. Different persons bid upon the work, and Kellogg, after examining the various bids, determined that James R. De Remer & Co. were the lowest bidders, and the contract was awarded to them. The agreement for the work was signed on or about the 23d of that month by De Remer & Co., and by Brown & Wells, by Edwin H. Kellogg, agent. On the same day Kellogg telegraphed the defendants, ‘Ditch contract signed to-day. Copy sent you.’ Three days later one of the defendants wrote Kellogg: ‘I have looked over the contract and specifications for the canal, and have nothing whatever to add. So far as I can see, it is perfect.’ When the contract was signed the plaintiff's firm inquired of Kellogg as to his authority to sign the name of the defendants. Thereupon he showed them the letter of January 6th, or a portion of it which related to his authority to make contracts for the defendants for constructing the dam and ditch. The particular part upon which it is claimed that the plaintiff's firm relied was: ‘We understand that we have already given you authority to make the contracts for the building of the ditch, as agreed upon here; but, so far as you may need such authority in writing, let his be sufficient.’ The plaintiff, before the commencement of this action, acquired all his partner's interest in the contract in suit and the money due the firm for the work performed under it.

On the trial the plaintiff and Kellogg were both called, and testified as witnesses for the plaintiff. The plaintiff testified that he knew nothing of any company, corporation, or syndicate that had anything whatever to do with the lands or the construction of the ditch which his firm contracted to build. The testimony of Kellogg was to the same effect. There was no direct proof that the plaintiff had any knowledge whatever that any corporation or person other than the defendants was principal in the building of this dam and ditch. The proof was, however, sufficient to justify the conclusion that Kellogg knew, or had reason to understand, that this work was being done for some inchoate corporation or syndicate, which was represented by the defendants. The trial court directed a verdict for the plaintiff, which was evidently based upon the theory that, unless the plaintiff's firm knew that the defendants were agents for some disclosed or undisclosed principal, they were liable upon the contract signed by them. It then held that as there was no evidence to show that they possessed such knowledge, but the proof was directly to the contrary, a verdict should be directed for the plaintiff.

David B. Hill, for appellants.

Thomas D. Adams, for respondent.

MARTIN, J. (after stating the facts).

When the discussion of the various reasons assigned by the courts below for their action in this case is omitted, and our examination is confined to the only question before us, which is the correctness of the decision from which this appeal is taken, the case is a plain and simple one, and the questions involved are not difficult of solution. The agreement which is the basis of this action, and upon which the plaintiff has recovered, was between the plaintiff's firm upon one hand, and the defendant's firm upon the other. The former thereby agreed to perform and furnish certain work and materials according to specifications which were a part of the contract, and the defendants agreed to pay for such work and materials the prices or sum mentioned therein. At the time of the trial there was due the plaintiff thereon the amount for which a verdict was directed. The contract was in writing, and was between J. R. De Remer & Co. as parties of the first part, and ...