#### SLOSS IRON & STEEL CO. v. JACKSON ARCHITECTURAL IRONWORKS.

(Supreme Court, Appellate Division, First Department

April 7, 1905.)

1. Sale—Offeb to Deliver—Question fob Jury.

In an action for breach of contract for the sale of iron, evidence examined, and whether the plaintiff had, within the time specified in the contract, offered to deliver the iron to defendant, *held*a question for the jury.

2. Same—Agent—Authority.

Where plaintiff, through Its agent, had been accustomed for a long time, in selling iron to defendant, to make deliveries to defendant on the order of a particular representative of the defendant, and when any iron was wanted such representative of defendant gave direction to have deliveries made, and they could not be made except on his order, plaintiff was justified in dealing with him as defendant’s authorized agent.

Action by the Sloss Iron & Steel Company against the Jackson Architectural Ironworks. Verdict was directed for defendant. Motion for new trial by plaintiff on exceptions ordered to be heard in the first *1057instance by the Appellate Division. Exceptions sustained, and new trial granted.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Lewis H. Freedman, for plaintiff.

Charles W. Pierson, for defendant.

McLAUGHLIN, J.

Action to recover damages for the breach of a contract. The complaint alleges that on or about the 6th of December, 1899, the plaintiff sold to the defendant and the defendant purchased from the plaintiff 8,000 tons of No. 3 Sloss iron, to be delivered at the pier of the defendant in the city of New York on or before July 1, 1900, and for which it agreed to pay $45,500; that the plaintiff, within the time specified in the contract, offered to deliver the iron, which the defendant refused to accept, and thereupon it elected to treat the same as its own property; that the market value of the iron at the place of delivery on July 1, 1900, was $39,500, and'by reason of the defendant’s refusal to accept the same plaintiff had been damaged in the sum of $6,000, for which judgment was demanded. The answer was substantially a general denial. At the trial the only question seriously litigated was whether the plaintiff had, within the time specified in the contract, offered to deliver the iron to the defendant. At the close of the evidence the court directed a verdict in favor of the defendant, and ordered that plaintiff’s exceptions be heard in the first instance at the Appellate Division.

I am of the opinion that plaintiff’s exceptions to the direction of the verdict must be sustained. At the conclusion of the trial upon all of the evidence a question of fact was presented, which should have been submitted to the jury, as to whether the plaintiff had offered to deliver the iron and same had been refused by defendant. It appeared that the plaintiff had another contract, which was to be completed in May, 1900, for delivery to the defendant of the same kind of iron, and that the defendant, notwithstanding the iron was offered from time to time, did not accept all of it until November, 1900. Plaintiff’s witness Adams testified that he offered on behalf of the plaintiff to deliver all of the iron called for by both contracts, and defendant refused to accept it. He further testified that in June he also offered under the contract in suit 300 tons, and one Hennessy, a person in the employ of the defendant, refused to accept it. This fact is undisputed, but the defendant contends it did not appear that Hennessy had authority to act for it. If this did not conclusively appear, there certainly was sufficient evidence to go to the jury on that question. The plaintiff, through Adams, had been accustomed for a long time to make deliveries to defendant on Hennessy’s order. When any iron was wanted by defendant, Hennessy gave directions to have deliveries made, and they could not be made except upon his order. This justified the plaintiff in dealing with Hennessy. Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324, 58 N. E. 44; Talcott v. Wabash R. R. Co., 159 N. Y, 461, 54 N. E. 1. Not only this, but defendant’s secretary testified that Hennessy was the order clerk, and *1058gave all orders for the delivery of iron under contracts; that it was his duty to see that the defendant had enough iron on hand to carry on its business, and for that purpose he directed the delivery of iron. Hennessy himself testified that he gave the orders for the deliveries of iron under the various contracts to the persons with whom the same were made, and the secretary of the defendant knew that he performed such duties. Plaintiff’s witness McQueen testified that he had an' interview with defendant’s secretary in August, 1900, and endeavored to have him accept at least 200 tons of iron, which had been ready for delivery several weeks; that he refused, and the only excuse given was that the defendant could not afford to take it; that the price of iron had gone down from December, 1899, to July, 1900. The testimony of McQueen was not contradicted by the defendant’s secretary; on the contrary, he substantially admitted the same was true. It also appeared that iron, at the time the contract was made, was worth $22.75 a ton, and between that time and the 1st of July, 1900, the price dropped to between $18 and $19 a ton. Criticism is made of the proof establishing plaintiff’s damage, but upon this branch of the case it is sufficient to say there was enough evidence to go to the jury, and, had the jury found the other questions which ought to have been submitted in plaintiff’s favor, they would have been justified in making a substantial award of damages.

It follows, therefore, that the exceptions must be sustained, and a new trial ordered, with costs to the plaintiff to abide the event. All concur.