#### The Stinesville and Bloomington Stone Company, Respondent, *v.*George W. White, Appellant.

(Supreme Court, Appellate Term,

July, 1900.)

1. Attorney’s offer to arbitrate a claim — Ratification — Evidence.

Where an attorney, retained to collect a claim for stone sold, submits it to arbitration, and his act is ratified by his client, the award and its performance by the vendee are a good defense to him against a subsequent action for the price, and it is erroneous for the trial court to exclude proof of them in such an action.

2. Same — Scope of arbitration.

Where the attorney’s offer to arbitrate states that the vendor is perfectly willing that a person named therein “ should go over your (the vendee’s) accounts, measurements and adjustment, and everything else which you desire to exhibit ”, the arbitrator does not exceed his authority if he considers and makes an award for disputed items of excess freight, and for measurement of the stone while in the cars by which it was shipped.

3. Attorney’s admissions after retainer.

A letter of the attorney, written after retainer but before action brought and apparently in the presence of his client, in which he refers to the arbitration, complains of the award as too small, and returns a check of the vendee as inadequate, is admissible against the vendor, as proof that there had been an arbitration and offer of performance, and, therefore, the exclusion of the letter upon the trial is erroneous.

Beekman, P. J., dissented.

Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, entered on the verdict of a jury, in favor of the plaintiff, for the sum of $2,481.96, which was reduced by the General Term to $2,446.96, damages, interest and costs.

Parsons, Shepard & Ogden, for appellant.

Jacob Fromme, for respondent.

*Per Curiam.*

The action was commenced on July 11, 1895, and is brought to recover for merchandise, consisting of stone, sold and delivered to the defendant by the plaintiff, at prices agreed *136upon, and of the reasonable value in the aggregate of $6,068.07. The defenses are breach of warranty, arbitration and award, and performance of the award.

The defendant did not pay the plaintiff’s claim in full for the stone, and considerable negotiations took place between the parties. The president of the plaintiff, Mr. Jas. S. Williams, came to ¡New York early in April, 1895, apparently for the purpose of collecting from the defendant the amount of the plaintiff’s claim. On or before April 13, 1895, Mr. Williams placed the claim in the 1 lands of Jacob Fromme, Esq., an attorney and counsellor-at-law of this city, for collection. On April 13, 1895, Mr. Fromme wrote to the defendant, informing him of his retainer by the plaintiff, and added: “ If the above amount is not paid to me, at my office, on or before Monday, April 22, 1895, 1 shall have to resort to legal proceedings for the recovery thereof.” On this same day — whether before or after the receipt of Mr. Fromme’s letter does not appear — the defendant wrote to Mr. Williams inclosing two-notes of $500 each, and stating as follows: “ As soon as we get an adjustment of the stone, I will likely send you .check for the balance of the account.” It should be noted here, as we have already seen, that the return for a considerable portion of the stone had not at this time reached the plaintiff. On April 19, 1895, Mr. Fromme wrote the defendant, returning these two notes for $500> each, that the defendant had sent to the plaintiff, and stating in the letter that Mr. Williams had forwarded them, with instructions to return them at once; and Mr. Fromme then reiterated the demand for a settlement at his office, contained in his letter of April thirteenth above mentioned. During the cross-examination of the defendant, the plaintiff introduced in evidence this letter of April nineteenth. Upon the redirect examination of the defendant, his counsel offered in evidence a letter written by Mr. Fromme two days before the commencement of this action, which letter defendant testified he received about the time of its date, to wit, July 9, 1895. It was objected to by the plaintiff’s counsel as incompetent, and excluded on the ground that it was not shown that Mr. Fromme was authorized by the plaintiff to write the letter. To this ruling the defendant’s counsel duly excepted. The letter is as follows:

*“*George W. White, Esq.

“Dear Sir.— When Mr. Arlando Marine was requested and designated by me to go over with you your accounts with the *137Stinesville & Bloomington Stone Company, with a view to a possible amicable adjustment of our differences, it was not intended by me to, nor did I, invest Mr. Marine with the power to pass on questions of excess freight or measurements. It was not contemplated by my client, nor by myself, that a question of allowing you for excess freight, or for payment of measuring cars could arise, and, of course, those items, as reported in your statement of June twenty-seventh, to wit, one-half of excess freight paid, six hundred and twenty-one dollars and sixty-two cents; one-half measuring ninety-four cars, thirty-five dollars and twenty cents; cannot for a moment be considered by us, nor will they in any event be allowed. The injustice to my client of such charges is too apparent. I, therefore, submit the following proposition as the last overture looking to a friendly adjustment, that is, if by to-morrow, Wednesday, July tenth, at four o’clock, I receive your certified check for $1,428.59, we will receive the same in full settlement of the claim. This amount, as you see, is simply the charges for one-half excess freight, $621,62, measuring, $35.20; added to your balance of $771.72, as shown, in your statement. The reason I make the time so short is not to be brusque in the matter, but simply because Mr. Williams has come from his home in Indiana to personally arrange the matter, either by settlement, or, if need be, by legal proceedings. 1 herewith enclose your check drawn on the Second National Bank, dated June 27, 1895, for $771.72, payable to your order and indorsed by you to my order ' in full of account of the Stinesville & Bloomington Stone Company,’ which, of course, I could not and did not use. Please acknowledge receipt of same. Tours, etc. Jacob Feomme.”

We think the act of Mr. Fromme in writing this letter was within the scope of the authority conferred upon him by the plaintiff, that it was competent evidence, and that its exclusion was grave error. The plaintiff put in evidence the letter of April nineteenth, from Mr. Fromme to the defendant. The plaintiff’s president, Mr. Williams, had testified that prior to April 13, 1895, Mr. Fromme had been retained by the plaintiff, and authorized to bring-suit, and when questioned, Mr. Williams said that Mr. Fromme did not write the letter of April thirteenth without his authority. Mr. Williams had sent the two notes for $500 each to Mr. Fromme, who returned them to the defendant as instructed to do by Mr. Williams. Mr. Fromme continued to act as the plaintiff’s attorney in *138pursuance of his retainer. It will he seen from the letter in question that Mr. Fromme stated: “ Mr. Williams has come from his home in Indiana to personally arrange the matter, either by settlement, or if need be, by legal proceedings.” The reasonable inference is that, at the time of the writing of this letter of July 9, 1895, Mr. Fromme was acting in the presence of the plaintiff’s president, and with his approval. We think that, under these circumstances, it must be said that the letter was a written admission of the attorney, authorized by the client, and, therefore, competent evidence against the client. In Stephen’s Digest on Evidence, article 17, we find the following, viz.: “ Banisters and solicitors are the agents of their clients for the purpose of making admissions whilst engaged in the actual management of the cause, either in court, or in correspondence relating thereto.” Again,' in the case of Tredwell v. Doncourt, 18 App. Div. 219, a letter had been offered in evidence which was written by the plaintiff’s attorney before the commencement of any litigation. It contained an admission that the plaintiff’s claim was against the person addressed and not against the defendant subsequently sued. There was evidence that, at the time this letter was written by the attorney, the plaintiff had said: “ I will put it (her claim for the debt) in lawyer Steinert’s hands.” The trial judge excluded the evidence. This was held error on appeal, and the court, in reversing the judgment, say: “We are of the opinion that this evidence was sufficient to establish *prima facie*the existence of authority in the attorney to write the letter, and made the same competent as evidence upon the trial.” On June 13, 1895, Mr. Fromme wrote a letter to the defendant in the following terms, viz.,

“ Mr. George W. White.

“ Dear Sir.— In reference to the claim of the Stinesville & Bloomington Company against you, the amount of which you dispute, I am perfectly willing that Mr. A. Marine, of New York city, should go over your accounts, measurements and adjustment, and everything else which you desire to exhibit; and the amount that Mr. Marine finds due from you to said company, I will accept for the company, in full of all, claims that it has against you. Yours truly, Jacob Fromme.”

This letter was ruled out by the trial justice. The defendant, however, was allowed to show that, subsequent to the receipt of *139this letter, Mr. Marine did go over the defendant’s accounts, and then the defendant offered an itemized statement of the account between the parties, made by Mr, Marine on June 27, 1895, in which Mr. Marine adds the following conclusion, viz.: “ Having examined the accounts, measurements and claims for deductions in the Stinesville & Bloomington Stone Company’s account against Geo. W. White, I find due the said company the above sum of $771.72.” But this paper was also excluded. The defendant then sought to show that he had, immediately after receiving said statement, sent his check for $771.72 to Mr. Fromme, in full settlement of the claim, and that it had been accepted by Mr. Fromme, but the trial justice ruled out such evidence on the same ground as that upon which he had excluded the letter of July ninth, above set forth. This letter of July ninth contains admissions of relevant and material facts, tending to establish the defendant’s defense of arbitration and award, and performance of the award. It admits the authority of Mr. Fromme to refer to Mr. Marine the question of the amount due to the plaintiff, or, which is the same in effect, it shows a ratification of the act and agency of Mr. Fromme, by the plaintiff. The reason given for not abiding by the arbitration is not that the matter was not duly submitted to the arbitrator, but the claim is asserted that the arbitrator had exceeded his authority. The letter states: “ It was not contemplated by my client or by myself, that a question of allowing you for excess freight, or for payment of measuring cars, could arise, and, of course, those items * * * cannot for a moment be considered by us,” etc. Had this letter been admitted, the agreement of arbitration and the award itself, offered by the defendant and excluded as we have seen under plaintiff’s objection upon the ground that it had not been shown that Mr. Fromme had any authority from the plaintiff to make such an agreement, would have become competent evidence. The award was divisible, and, even if void as to a part, was nevertheless admissible, as plaintiff would be bound by that part which was good. See Morse Arbitration, 464; Nichols v. Mut. Ins. Co., 22 Wend. 125; Butler v. Mayor, 1 Hill, 489; Shrump v. Parfitt, 84 Hun, 341. It is not suggested that the arbitrator exceeded his authority in regard to all the items of the award. We think, moreover, that in view of the language used in the offer to arbitrate (i. e. the letter of June thirteenth, above quoted), viz.: “And anything else which you desire to exhibit,” it was sufficiently broad *140to authorize Mr. Marine to take up the questions of excess freight and of payment for measuring’ cars, and report thereon. It is entirely clear from the testimony, that the defendant accepted the offer to arbitrate, contained in Mr. Fromme’s letter of June thirteenth, and exhibited to Mr. Marine all his books, and placed him in possession of all necessary information to enable him to make the award. On the very day the award was made, viz., June twenty-seventh, the defendant, as we have seen, paid the amount of the award, i. e., $111.72, by sending his check therefor to Mr. Fromme, who kept it some ten days, and then returned the check to the defendant in his letter of July ninth. This letter of July ninth cannot be properly said to be a repudiation of the arbitration, since by that letter it appears that the plaintiff was willing to accept the award, except as to the items of excess freight and measuring cars.

For the foregoing reasons, we are of the opinion that the judgment of the General Term and of the Trial Term should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Giegerich, JJ., concur.

Beekman, P. J. (dissenting).

I feel constrained to dissent from the conclusion of the majority of the court. I am satisfied that a general retainer to prosecute a claim does not import the existence of authority on the part of the attorney, before action brought, to consent to an arbitration of his client’s cause. It was, therefore, necessary for the defendant to show either specific authority so to do from the plaintiff to its attorney, or a subsequent ratification by it of his acts in order to justify the admission in evidence of the agreement to arbitrate which said attorney assumes to make. While the question may be a close one, I am unable to find in the record sufficient evidence to support a finding that any such authority existed, or that there was a ratification of the attorney’s act by his principal. The mere unsworn declarations of the attorney importing the existence of such authority can hardly be accepted as competent proof on this point. The judgment should be affirmed.

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