#### Edwin S. Piper, Appellant, *v.*Jacob H. Herrick et al., Respondents.

(City Court of New York, General Term,

March, 1899.)

Principal and agent — Authority — Ratification.

The mere declarations of an agent cannot establish his authority. Neither agency nor ratification is shown by proof that when the vendor, upon making the sale, demanded payment of a part of the consideration, he received a check of the alleged principal and alleged vendee made payable to the order of the alleged agent and indorsed by him.

Appeal from a judgment in favor of defendants dismissing the complaint herein and from an order denying a motion for a new trial.

Burr, Coombs *&*Wilson (Joseph A. Burr, of counsel), for appellant.

Cornelius Fiske, for respondents.

Conlan, J.

This is an appeal taken from the judgment of the Trial Term dismissing the complaint, and from an order denying a motion for a new trial.

*650The action was brought to recover the value of certain goods alleged to have been sold to the defendants and of certain work, labor and services rendered by the plaintiff' to and for the defendants at their request.

The answer is a general denial.

Upon the trial it appeared that the transactions were between the plaintiff and one David H. Bacon, who, it is claimed, was acting with the authority of and as the agent of the defendants in relation to all of the matters for which the recovery is sought herein.

It is clear, therefore, that unless agency be shown or that a subsequent ratification be proven, that there can be no recovery in the present action.

The plaintiff’s evidence is to the effect that David H. Bacon called upon the plaintiff and represented himself as the agent of the defendants, with authority to bind them in the transaction, and ordered certain goods and certain work done in relation thereto.

The same to be used in certain charges and fittings at the Phoebus theatre in the borough of Brooklyn. These occurrences are alleged to have taken place between the 30th day of April and the 17th day of Hay, 1895; it also appeared from the trial that no effort was made by the plaintiff to communicate with the defendants directly with regard to the transaction until after the delivery of the goods and the completion of all the work ordeied by Bacon.

The first conversation between the plaintiff and the defendants was, as testified to by the former, on the Monday following May 17, 1895, when he said to Herrick: “ Will you pay that bill? ” and Herrick replied that he did not think that Bacon had bought those goods to be charged to J. H. Herrick & Co.

At a subsequent conversation when Bacon was present, Bacon is alleged by the plaintiff to have said in the presence and hearing of Herrick, that he, Bacon, might have said that the goods were to be paid for by J. H. Herrick & Co., trustees of the owner of the Phoebus theatre, or that they were to be paid for by J. H. Herrick *&*Co., representing the owners of the Phoebus theatre, and that Herrick made no denial of Bacon’s statement, but that to a remark then made by plaintiff to Herrick, *“*I have come here to get this thing in good business form. We have sold these' goods to J. H. Herrick & Co. in good faith and hold them responsible for the payment of the bill.” Herrick then said, “ Well, I think everything will come out all right.”

*651In a letter subsequently written by the defendants to the plaintiff, dated May 24, 1895, the defendants wholly repudiated the act of Bacon as follows: “ It is proper to add that my firm has no knowledge or information that Mr. Bacon was having any dealings with your firm.”

We do not think that the acts of the defendants as described herein from the plaintiff’s own testimony amount to a ratification of the contract alleged to have been made by Bacon acting as their agent.

Kor does it appear anywhere in the case that Bacon was acting or was authorized to bind the defendants by any other statement than the language employed by Bacon himself, as testified to by the plaintiff.

This, clearly, was not enough to establish agency.

There is no evidence in the case to show that the defendants were engaged in the theatrical business or any other business than as bankers and brokers, and whatever may be said concerning the alleged conduct of Bacon and his authority to bind the defendants, it is clear that the plaintiff ought to have posted himself by calling upon or communicating with the defendants at any time between the 30th day of April, 1895, and the 17th day of May, 1895, and ascertained the truth of the whole matter.

The mere fact that the plaintiff demanded a part of the consideration upon making the sale, and received in payment a check of the defendants for $100, payable to Bacon’s order, and by him indorsed, is not of itself ratification by the defendants, nor evidence in any way tending to show that Bacon had any authority to bind them as their agent.

We think the case was properly taken from the jury and that a dismissal of the complaint was not error which calls for a reversal.

Judgment should, therefore, be affirmed, with costs.

Eitzsimxots, Oh. J., concurs.

Judgment affirmed, with costs.