#### Thomas Balmford, Respondent, *v.*Marguerite A. Peffer, Appellant.

(Supreme Court, Appellate Term,

June, 1900.)

1. Principal and agent — Improper recovery against agent, credit having been given the principal.

Where the evidence in an action for services makes it obvious that they were rendered solely on the credit of the principal, a recovery against the agent is without support.

3. Same — Agent not presumed to have exceeded authority.

Where there is no evidence as to what authority the agent had in the matter, the court will not presume that she exceeded it and made herself personally liable.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had before the court and a jTMy.

*716The nature of the action and the material facts are stated in the opinion.

Clark B. Augustine (William O. Gantz, of counsel), for appellant.

J. Baldwin Bands, for respondent.

Giegebich, J.

The claim of the plaintiff, as upon the earlier trial, is based upon a conversation alleged to have taken place between the parties, concerning his employment as an undertaker to bury the wife of one William Osborne. Pie testified that after a conversation with the husband of the deceased concerning the cost of the funeral, he declined to proceed, as he was hot satisfied as to the latter’s pecuniary ability, whereupon the husband declared that his aunt, one Mrs. Dean, by whom he was at the time employed, would pay the bill. The plaintiff, for the purpose of having the order confirmed, then went to the residence of Mrs. Dean, and there met the defendant, who informed him that her mother was' ill and could not be seen, but “ she would do as well.” The plaintiff then stated he had called for the purpose of having an order for the funeral of the wife of William Osborne confirmed, and a conversation then ensued regarding the amount of the charge therefor, the defendant asking where it could be reduced, and he pointing out in what, regard it could be done. According to the plaintiff’s testimony, the defendant then stated that they ought to take the cheaper coffin to make it twenty dollars less, “ and we agreed upon the amount of $70, and she told me it was all right, to go on and do the work ”; and further directed plaintiff to forward the bill to Mrs. Dean, which he did. Viewing, as we must, the foregoing testimony in the most favorable light to the plaintiff, it is manifest that it was not the intention of either party that the defendant should become personally responsible for the funeral expenses. The object of the plaintiff in calling at the residence of Mrs. Dean was to obtain her guarantee for the payment of the bill, but by mere chance met the defendant, to whom he stated the purpose of his visit. It is clear even from the plaintiff’s version of the entire conversation had between them, that each understood that the defendant was acting merely as a representative of Mrs. Dean, and not individually, and that credit was given to Mrs. Dean. The subsequent acts of the plaintiff confirm this view; *717for, within a few days after the funeral, he sent a bill to Mrs. Dean, and later on made out a receipt to her for a payment on account. He further, by several letters, demanded payment of the balance from Mrs. Dean, and also wrote to the latter’s attorney in fact, requesting him to send a check “ for the balance due from Mrs. Dean.” In a letter written by the plaintiff to the latter, bearing date May 24, 1899, he states, “ I did the work at a low price on your assurance that you would pay the bill.” The plaintiff admits the defendant never promised to pay the bill; that he never sent her a letter with respect thereto, and that the first demand he made upon her for payment thereof was by this action. When asked upon cross-examination why he did not ask the defendant for payment when he failed to get it from Mrs. Dean or her attorney in fact, David L. Osborne, the plaintiff answered, “ I took this course instead.” It thus appearing upon the plaintiff’s own showing that he looked to Mrs. Dean, and not to the defendant for payment, the justice erred in denying the motion to dismiss the complaint, made when the plaintiff rested, and renewed upon the close of the case. Hence, the exceptions noted to such rulings were well taken.

Hpon comparing the testimony of the plaintiff as set forth in the opinion of the court, delivered by Mr. Justice Leventritt, upon the former appeal (30 Misc. Rep. 117), with that given upon the trial which is the subject of this review, it is obvious that the testimony of the plaintiff is an afterthought, and was given with a view of fastening, if possible, a personal liability upon the defendant for the services in suit. There the pláintiff testified: *“*I told her (defendant) my business, and she said that it was all right, that Mrs. Dean would be security for the amount. Before saying that she changed the order and lessened it by twenty dollars * * * and said to go on and send the bill to Mrs. Dean.” Here, as above noted, the plaintiff gave testimony to the effect that the defendant told him “ to go on and do the work.” The position thus assumed by the plaintiff is inconsistent with all his acts subsequent to the alleged conversation with the defendant. Apart from this, the husband of the defendant testified — and he was not contradicted by the plaintiff — that during the course of a conversation had with the latter, he asked him whether his wife *“*had said anything in regard to the matter of making her responsible,” . and that the plaintiff replied: *“*Never, it is Mrs. Dean who is re*718sponsible for the bill.” The attorney in fact for Mrs. Dean gave testimony to the effect that the plaintiff looked to the latter for payment of the bill, and that he made a payment on account thereof at the request of William Osborne, from whom the plaintiff was to receive monthly payments of ten dollars each, out of his wages. This is in entire harmony with the defendant’s version of the conversation had with the plaintiff, and which is to the effect, that her mother had arranged to pay him ten dollars a month on account of the bill, as long as William Osborne worked for her, and that the latter worked for Mrs. Dean for about six weeks after his wife’s death. The case was submitted to the jury upon the theory that the evidence supported a finding either that the defendant had made an express contract to pay plaintiff’s bill, or that she had exceeded her authority in assuming to act for Mrs. Dean. As above shown, the evidence was not sufficient to support a finding that the defendant agreed to pay for the expenses attending the funeral of Mrs. Osborne. Aside from this, the proof overwhelmingly favors the contention that the services, which are the subject of this controversy, were rendered solely in consequence of credit being given to Mrs. Dean.

With respect to the other alleged ground of liability, the justice charged the jury: *“*If you believe from the testimony here, and I charge you that there is testimony that may support that contention — that Mrs. Peffer did, in her dealings with Mr. Balm-ford, exceed her authority which she had in trying to make Mrs. Dean liable for this bill, then Mrs. Peffer is responsible herself for it.” The defendant duly excepted. From a consideration of the record, we are satisfied that the exception was well taken. Mrs. Dean was not called as a witness, and in the absence of evidence touching the defendant’s authority to act for the latter, we cannot indulge in the presumption that when, as testified, the defendant told the plaintiff that her mother would pay towards the bill ten dollars a month, so long as William Osborne worked for her, she neither acted without authority nor exceeded such authority as she possessed. The justice, therefore, erred in charging the jury that there was evidence that the defendant in her dealings with the plaintiff had exceeded her authority, and the error was not cured by the subsequent instruction that it was incumbent upon the plaintiff to prove the unauthorized assumption of authority on the part of the defendant.

*719The defendant insists that if the evidence can he construed to harmonize with an individual promise, on her part, to pay the plaintiff’s claim, it is one to answer for the debt of another person, and that since a note or memorandum thereof was not signed by her, such promise is void by the Statute of Frauds. A defense founded upon this statute in order to be available must be pleaded (Crane v. Powell, 139 N. Y. 379), and inasmuch as that was not done in the court below, such defense cannot be urged for the first time on appeal.

It follows from the views above expressed that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gorman, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.