#### Cox *v.*Albany Brewing Co.

*(Supreme Court, General Term, Third Department.*

May 26, 1890.)

Principal and Agent—Acquiescence in Agent’s Acts.

Where, pursuant to a written invitation, a laborer goes to defendant’s office for service, finds there a person assuming to employ hands, is engaged by him for one year, and put to work, and the service continues for several weeks to the knowledge of the firm’s general superintendent, such laborer may assume that the person who employed him was authorized to do so; and private instructions to such person not to employ labor for more than one day, unknown and uncommunieated to the laborer, will not relieve the firm from liability on the contract.

Appeal from Albany county court.

Action by Luke Cox against the Albany Brewing Company. Defendant appeals. Bor appeal from judgment of nonsuit, see 6 Y, Y. Supp. 841..

Argued before Learned, P. J., and Landon and Mayham, JJ.

*Be Witt & Spoor,*for appellant. *Chase <& Belehanty,*for respondent.

Mayham, J.

This is an appeal from a judgment of the Albany county court, rendered upon the verdict of a jury in favor of the plaintiff, and also from an order of the county court denying a motion for a new trial, upon the judge’s minutes. The action is upon an alleged contract by the defendant for the labor of the plaintiff in the defendant’s brewery for one year, at the rate of two dollars per day, which the plaintiff alleges the defendant broke by discharging him from its employment before the expiration of the term. The defendant denies the making of the contract; and the principal contention is, was the plaintiff employed by the defendant to work by a contract or agreement binding upon the defendant? The jury found for the plaintiff, and a judgment was entered upon their verdict, and from that judgment the defendant appeals.

The jury having found for the plaintiff upon the disputed question of fact, as to whether or not there was an agreement between the parties that the plaintiff was to work for a year, and also that there was a breach, and damages resulting therefrom, their finding should be upheld, unless there was some error committed on the trial upon questions of law. It is insisted on the part of the appellant that, as matter of law, no binding contract upon the defendant was proved, as there was no affirmative proof on the part of the *214.plaintiff that Gray, with whom the plaintiff claims to have contracted, was the duly-authorized agent of the defendant to employ hands for more than one ■ day at a time; and that, therefore, if, as is claimed in this case, he employed the plaintiff for a year, he did so without the authority of the defendant, and it is not bound by that agreement. It is a well-settled and elementary rule •of law that a special agent, with limited powers, cannot bind the principal, where he acts outside of the scope of his authority, but that rule is subject to this qualification: that where an agent is intrusted to do a particular kind of "business he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business, and his acts, as between his principal and strangers, in that particular line, will bind the principal, •although he violate some private instructions given by his principal, not .known to the public. If, therefore, it be conceded or established, by the proof In the case, that Gray had authority to hire hands on this work, that authority, as between the defendant and strangers dealing with him in that line, would be general, unless the limitation or qualification of his authority was made known to persons whom he employed in the service of the defendant. In the language of this court in *Cox*v. *Brewing Co.,*6 N. Y. Supp. 841, on a former appeal: “As between the parties, Gray was the ostensible agent of defendant, and clothed with all the power he assumed to exercise.” The undisputed evidence in this case is that the plaintiff was invited by a written communication to come to the defendant’s brewery for service; that pursuant to that request he went there, and found Gray in the office assuming to employ hands; that he was then and there set at work by Gray, and continued in that service for several weeks, to the knowledge of the general superintendent, and paid from time to time for his services. It is true he was contradicted by Gray as to the terms of the employment, but that raised a question of fact, which was disposed of by the jury; and while his continuance in ■service for that term might not, and would not, amount to a ratification of the special contract by the defendant, unless its terms were disclosed to it, ■still it was evidence bearing strongly upon the authority of Gray, and such as might be relied upon by his employes, who had no notice of any limitation upon his authority. In *Conover*v. *Insurance Co., 1 N.*Y. 292, the court says: “Incorporated companies, whose business is necessarily conducted altogether by .agents, should be required, at their peril, to see to it that the officers and agents whom they employ not only know what their powers and duties are, but that •they do not **** * transcend their powers. How else are third persons to deal with them with any degree of safety?” As was said in this case, the public have “no means of judging in the particular instance whether the officer is or is not within the prescribed limits.” *Leslie*v. *Insurance Co.,*63 N. Y. 34; *Fister*v. *La Rue,*15 Barb. 323; *Dilleber*v. *Insurance Co.,*76 N. Y. 572.

The plaintiff had a right to assume that the person at the office, who assumed to employ laborers, had authority to act in that capacity; and it has been held that a jury may presume the authority in such a case, from an act •openly done in the usual course of business, at the office of the company, without the evidence of actual knowledge on the part of the company or its directors, or of express ratification. We discover no error in the charge of the judge, or in his refusal to charge, which will justify a reversal of this judgment. As we have seen, any private instructions by the manager of the company to Gray, prior to the making of the contract, that no laborer should be hired for a longer time than for one day, not known by or communicated to the plaintiff, would not relieve the defendant from liability, so long as the defendant permitted Gray to act for it at the office in the capacity of an employer of labor. It was not, therefore, error for the judge to refuse to ■charge as requested upon that point. The judgment and order are affirmed, with costs. All concur.