#### Henry Clews *et al.,*App’lts, *v.*Cornelius Rielly, Resp’t.

*(Supreme Court, General Term, First Department,*

*Filed July 9, 1889.)*

1. Principal and agent—Sales—When principal bound.

In an action to recover the value of certain screenings sold and delivered to the defendant, the evidence tended to show that defendant paid plaintiff in full according to weights and prices rendered by plaintiffs’ agent. The plaintiffs contend that the agent’s power was limited to a sale at the market price. It further appeared that his agency was a general one as to the sale of grain. *Held,*that no instructions given him by his principals could affect defendant unless made known to him; that in the absence of fraud the agent’s act concluded plaintiffs.

2. Judgment—Offer of—When not accepted—Rights of parties.

Defendant promised to pay a certain sum in settlement of the claim within a definite time, and upon the commencement of the suit offered *to pay*a certain sum, but plaintiffs declined, and insisted upon their full demand. They now insist that they were entitled to judgment for the amount offered. *Held, that*plaintiffs *having*repudiated the compromise, can claim nothing by virtue of'it, but the parties were remitted to their original rights.

3. Evidence—What does not prove value.

Evidence of an exclusive contract to take all the screenings in plaintiffs’ business for a year, in that it did not show the market price *at the*particular time, was not competent to prove value at that time.

*Boyal 8. Crane,*for app’lts; *Charles J. Patterson,*for resp’t.

Cullen, J.

This action is to recover the value of certain screenings sold and delivered to the defendant. The complaint alleged that defendant conspired with plaintiff’s agent, one De Betts, to obtain possession of such screenings at less than the market price and that on the discovery of the fraud, the defendant agreed to pay plaintiffs the market price and that the balance of such amount due plaintiff was the sum of $1,295.53.

The referee before whom the cause was tried, found for the defendant and from the judgment entered upon his report this appeal is taken.

The evidence clearly established that defendant had paid plaintiffs in full for the screenings according to the weights and prices rendered by plaintiffs’ agent De Betts.

De Betts was the head of the grain department of plaintiffs’ business and had full authority to sell the screenings. The plaintiffs contend that De Betts’ power was limited to a sale at the market price. But as it appears that De Betts was the plaintiffs’ general agent as to 'the sale of grain, it is plain that no instructions given him by his principals as to price, could affect the defendant unless made known to him. *Pechner*v. *Phœnix Ins. Co.,*65 N. Y., 195.

Both defendant and De Betts testify to ,tke prices at which the screenings were sold to the defendant. Hence in the absence of fraud, the act of De Betts concluded the plaintiffs. As to fraud, there was no testimony given which would have justified any such finding.

*775One of the plaintiffs testifies that when the dispute occurred between plaintiffs and defendant as to these transactions, the defendant promised to pay $2,000 within a specified time in settlement of the claim, or in default thereof, he would pay whatever the plaintiffs might establish that he owed them. Upon the commencement of this suit, defendant offered to pay a sum which, with the previous payments, would amount to $2,000, but the plaintiffs declined to accept it, and insisted upon their full demand.

It is insisted that the referee should have ordered judgment in favor of the plaintiffs for at least the amount which defendant had offered.

Assuming that the dispute between the parties afforded a good consideration for the settlement, and for the defendant’s promise to pay a stipulated sum, it appears that the agreement was only a qualified one. It was to pay within a definite time. The defendant’s default would not operate to relieve him from liability, but it enabled the plaintiffs to repudiate the settlement. This they elected to do, as was their right. But after having rescinded the compromise, they can claim nothing by virtue of the settlement, but the parties were remitted to their original rights.

But one exception to the rulings of the referee upon the evidence requires discussion. Two witnesses, after having testified to the market value of screenings, were asked if they had made offers to De Betts to purchase the screenings. This testimony was excluded. No doubt *bona fide*offers to buy are competent evidence to prove value. But an examination of the case shows that the offers excluded were not to buy any particular lot of screenings, but for any exclusive contract to take all the screenings in the plaintiffs’ business for a whole year.

We think no error was committed, and that the judgment appealed from should be affirmed, with costs.

Van Brunt, Ch. J., concurs.