#### Robert Larter, Jr. plaintiff, *vs.*The American Female Guardian Society, defendants.

In an action against a corporation, for a breach of a contract by their agent to employ the plaintiff as the printer of a periodical published by them, where the only evidence of the authority of the agent to make such contract was the fact that he was daily employed about their business in their building, and paid the plaintiff for his work, or certified his bills upon which the treasurer paid him, and that the paper for printing Was received from and returned to the defendants’- establishment by the plaintiff; *Seld*that this was not sufficient proof of a contract binding upon the defendants.

(Before Robertson, White and Barbour, JJ.)

Heard June 10, 1863;

decided December 30, 1863.

Exceptions taken on the trial, and directed by the court to he heard in the first instance at the general term, and judgment meanwhile to he suspended.

The defendants in this action were a corporation. The cause was tried ón the 26th of January, 1863, before Justice Bobertson and a jury. The material facts appear in the opinion of the court.

*Moses Ely,*for the plaintiff.

I. The contract and the withdrawal of employment from the plaintiff were clearly proved at the trial. The ruling of the court upon the question of damages, was evidently upon the theory that admitting the contract to be the defendants’ they were entitled to put an end to it at pleasure. The objections to the evidence as to damages were general, and were not put, nor were the rulings made upon the ground of irregular order of proofs. The court having by those rulings ex-*599eluded all evidence as to damages, it became immaterial and useless for the plaintiff to proceed with proofs that the contract was actually made with the defendants.

II. There was sufficient evidence to go the jury that Angelí was the agent of the defendants, and the making of this contract was within the scope of his authority as such agent.

1. The conduct of Angelí in his general identification with, and management of the defendants' business, at their place of business;

2. The representations made by Angelí as to his express authority to bind the defendants by this particular contract;

3. The subsequent dealings of the defendants with the plaintiff under this contract, were admissions that the contract was theirs from the beginning. *(Long I. R. R. Co.*v. *Marquand,*6 *N. Y. Leg. Ob.*160. *Steam Naviga. Co.*v. *Weed,*17 *Barb. 378. Hoyt*v. *Thompson’s Exr.*19 *N. Y. Rep.*208.)

4. The pleadings establish it.

5. Whether the making this contract for the defendants was within the scope of Angell’s authority or not, his conduct and that of the defendants themselves were such as to raise the reasonable inference in the mind of the plaintiff that it was, and thus to estop the denial of it by the defendants. *(Perkins*v. *Washington Ins. Co.,*4 *Cowen,*645.)

III. Whether Angelí was originally authorized to make the contract on behalf of the defendants or not, their subsequent' dealings with the plaintiff, under the contract, whereby they accepted its benefits, was a ratification of the- contract. *(Fister*v. *La Rue, &c.*15 *Barb.*323.)

IV. The court erred in the rulings upon the question of damages.

1. The withdrawal of the work from the plaintiff was a direct violation of contract, and entitled him to damages. By the terms of the contract the plaintiff was to have the work so long as he should do it in a “workmanlike manner,” and he had made all his business engagements and arrangements, and had made great expenditures and incurred great liabilities in expectation of continued employment.

*6002. The fact that the contract" was for an uncertain period, in no way affected • the validity of any part: of it. ■ A contract may be determinable upon the happening of an uncertain contingency, as well as upon the maturing of a certain date. The authorities are numerous in which this doctrine is practically recognized. : *Masterton v. The Mayor, &c.*(7 *Hill,*61;) *Jones*v. *Shears,*(7 *Car. and Payne,*346;) are instances of them. Neither *McLees*v. *Hale,*(10 *Wend.*426,) nor *Palmer*v. *Vandenbergh,*(3 *id.*199,) establish a contrary principle as applicable to the facts of this case. .....

*John E. Parsons,*for the defendants.

: I. The contract was not made with the defendants directly, . and" there -was no evidence of Angell’s authority to bind them to it..- Agency can not be established by the acts or declarations' of the agent only. (1 *Cowen and Hill’s Notes to Phil. on Ev. p. 412, 3d ed.)*There was no attempt made to prove that Angelí had,;on any other occasion, made aify similar contract- which the defendants, bad-approved, or: of which they knew. = Nor did the plaintiff seek to prove, in any other way, implied authority .to=Angelí. *' • c¡

II. It :did. not appear that the defendants ■ ever knew - of the existence of the contract, so that of course, there could be no evidence of any: ratification of it by'them. *(Seymour v.. Wyckoff, 6 Seld.*213. *Nixon*v. *Palmer, 4 id.*398. *Gorham*v. *Gale,*7 *Cowen,*739;) ' ,

■III. The agreement, that-the contract should.be binding on the defendants, as long as'the'plaintiff did the" work in a workmanlike manner, was hot sustained by any mutual obligation binding' the plaintiff for any length of time, and so would have been void even had the agency df Angelí been established.' ¡The defendants could .not,“in the .language of the"plaintiff’s witness, Henry, be c? perpetually” bound, without some- correspondingagreement perpetually binding the plaintiff;'-o Such a ¡contract" is .determinable by either party at any time. .

*601IY. Had the plaintiff established the defendants’ liability, the damages, as to which evidence was excluded, were too remote.

By the Court, White, J.

The plaintiff in this action alleges that he made a contract with the defendants, by the terms of which he was to do the press-work of a newspaper, or periodical, published by them semi-monthly, for certain stipulated wages or compensation, and that this employment was to be continued to him so long as he did the work in a workmanlike manner; and his complaint further states, that at the expiration of one year the defendants took the work from him, against his will, and refused to employ him any longer, although he tendered his services, and requested them to give him the work.

The defendants deny the making of the alleged contract with the plaintiff, but state that he did press-work for them, and deny that, he did it in a workmanlike manner; and they also allege, that at or near the close of the year he refused to do the work except for higher wages, which he demanded.

The proof on the trial was, that the"plaintiff made a written' contract of the character stated in the complaint, with one Angelí, who professed to be authorized by the defendants to make such contract, on their behalf; and it also appeared, that the plaintiff did press-work under that contract for one year, but that some of it was not done in a workmanlike man, ner; that towards the close of the year he complained to Angelí of the inadequacy of the compensation or wages he received, and claimed a higher rate of pay. But no proof was given, that Angelí had authority to make the special contract above mentioned, so as to bind the defendants by it; the only proof of his agency being, that he was daily engaged in and about the defendants’ business and building, and paid the plaintiff for his work, or certified the bills for it, so that the treasurer of the society paid him; and it also appeared that the paper for the press-work was received from and returned to the *602defendants’ establishment by the plaintiff; there was no testimony to show that the defendants had any knowledge that the special contract was made, or knew that the plaintiff was doing work for them otherwise than from day to day, • and at their will and option as to its duration and extent.

Upon this testimony the court at the trial dismissed the complaint on the ground that the contract or agreement set up by the plaintiff had not been proved; in which decision I can discover no error. And the making of the contract not being proved, the learned judge was necessarily right in excluding, as he did at the trial, testimony offered to show damages sustained from a refusal of the defendants to comply with its alleged stipulations.

The motion for a new trial should be denied, and judgment rendered in favor of the defendants upon the decision of the judge at special term, - with costs, including the costs óf this appeal.