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Opinion of the Court, per ALLEN, J.

ery under the contract, does not excuse the delivery of the residue. The plaintiff was not in default, and the defendants had no legal claim for payment for any part until the whole should be delivered.

The referee has found that the plaintiff fully performed his contract; that is, he was ready and willing to perform it by receiving and paying for the brick when they should be delivered during the time limited for that purpose. He has also found that the defendants having delivered a part of the brick, refused to deliver the balance.

The defendants did not deliver the brick within the three months given for that purpose, and on being requested after that time to do so, did not comply with the request, and in defence of this action alleged a waiver of performance by the plaintiff.

The evidence justified the finding by the referee of the refusal to perform by the defendants. It was not necessary as a condition precedent to a right of action for a breach of the contract that the plaintiff should make a formal demand of the brick and tender the pay therefor at the place of delivery. It is enough that he was ready and willing to receive the brick and pay for them on delivery. It is enough that the plaintiff was willing to accept and pay. (Coonley v. Anderson, 1 Hill, 519; Vail v. Rice, 1 Seld., 155; Hilliard on Sales, 507; Bronson v. Wiman, 4 Seld., 182.) It was not necessary that the plaintiff should have had during the whole of the three months, or on any day during that time, a sum of money in hand sufficient to pay for the whole quantity of brick called for by the contract. It was sufficient that he had the means and resources at his command which would have enabled hiin to pay had the brick been delivered. (Bronson v. Wiman, supra.) The only question propounded to the plaintiff on his cross-examination as a witness, which was of any materiality even on a cross-examination, which was excluded, was, whether, had the brick been delivered within the three months stipulated in the contract, he could have paid for them on delivery. The question, although the objection to it was

Statement of case.

sustained by the referee, was immediately fully answered, and the ability and the means and resources of the party fully stated and explained in answer to questions put by the defendants' counsel. The same remark applies to all the questions put on behalf of the defendants to the plaintiff as a witness. They were all well and satisfactorily answered in the course of the examination. If there was error in the exclusion of evidence, it was cured by the subsequent reception of the same evidence in the course of the examination of the same witness.

The judgment should be affirmed.
All concur, except Peckham, J., dissenting.
Judgment affirmed.





The powers of a special agent are limited by the terms in which they are

conferred, and must be strictly pursued. The principal is not bound by

his acts beyond the limits of the authority delegated. Defendant's vessel being ashore at the Delaware breakwater, he telegraphed

to M. & D. in New York as follows:"Send me a small tow-boat. Make the best bargain you can.” Held (ALLEN, J.; GROVER and FOLGER, JJ., concurring), that the authority contemplated the hiring of a boat already manned and equipped, and in the absence of proof of a necessity for such action or of proof of the existence of a custom or usage to that effect, the agents were not authorized to assume on behalf of defendant the perils of the service or the risks of the voyage, or to insure against the negligence of any one employed in the navigation or handling of the boat.

(Argued May 23, 1872; decided June 4, 1872.)

APPEAL from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of plaintiff

, entered upon a verdict, and ordering a new trial. This action was brought to recover for the loss of plaintiff's steam-tug, May Queen, through the alleged negligence of defendant's servant.

Statement of case.

Defendant owned the bark Antietam. In November, 1862, it being ashore at the Delaware breakwater, he telegraphed from Lewes, Delaware, to Metcalf & Duncan, New York, as follows:

To Metcalf & Duncan :

“Send me small tug-boat.

* *

Make the best trade

you can.


Duncan, one of the firm of Metcalf & Duncan, chartered plaintiff's steam-tug May Queen at an agreed rate per hour, defendant to furnish coal, and to furnish or pay a pilot. Plaintiff found one Cutler, a coast pilot, and brought him to Duncan, who hired him. The vessel sailed on the 14th November. On the 17th, while Cutler was at the helm, the tug came in collision with the United States gunboat Wamsutta and the May Queen was sunk.

Aug. F. Smith for the appellant. As no motion was made for new trial on the merits, nothing was before the General Term: but the validity of the exceptions. (Code, 265; Keyes v. Devlin, 3 E. D. Smith, 518; Benkard & Hutton v. Babcock, Ct. of App., decided January, 1870.) Defendant was responsible for the negligent acts of the pilot. (Story on Bailments, SS 399, 400.)

R. C. Benedict for the respondent. If any error was committed on trial, the order of General Term must be affirmed. Sanford v. Eighth Ave. R. R. Co., 23 N. Y., 343; Cook v. N. Y. C. R. R. Co., 3 Trans. App., 8; Macy v. Wheeler, 30 N. Y., 231; The People v. Lacoste, 27 id., 197.) Duncan had no authority to bind defendant for the negligence of the pilot, or to hire one. (1 Par. on Con., 48; Dows v. Perrin, 16 N. Y., 330; Smith v. Tracy, 36 id., 86; Gibson v. Colt, 7 J., 393; Munn v. Com. Co., 15 id., 54; Davenport v. Buckland, Hill & D. Supplt., 75; Denning v. Smith, 3 Johns. Chanc., 332; Delafield v. The State of Illinois, 26 Wend., 527; Batty

Opinion of the Court, per ALLEN, J.

v. Carswell, 2 Johns., 48; Sandford v. Handy, 23 Wend., 268; The Fauquier, 11 Law R. [N. S.], p. 12; Hawtayne v. Browne, 7 M. & W., 595; The May Queen, 1 Newb., 472; The Schooner Freeman, 18 How. U. S. Sup. Ct., p. 182; Grant v. Norway, 2 Eng. L. and Eq., 337; Hubbersty v. Ward, 10 id., 551; Coleman v. Riches, 29 id., 323; McCready v. Woodhull, 34 Barb., 80; Beach v. Vandewater, 1 Sand., 276; Zachrisson v. Ahman, 2 id., 68; Wright v. The Central Railroad and Banking Co., 16 Geo., 38.) Plaintiff having found the pilot, cannot claim damages for his incompetency. (The Miletus, 5 Blatch., 335.)

ALLEN, J. The question of most importance presented upon this appeal, and which lies at the foundation of the plaintiff's claim, is as to the agency of Metcalf & Duncan for the defendant, and the extent of their powers. It is presented by the exceptions to the ruling of the judge at the trial that the agents named had authority to employ a pilot to take charge of the steam tug on her voyage from New York to Delaware breakwater. If this was right the other instructions to the jury, in answer to the requests of the counsel for the plaintiff, were properly given as the legal sequence of the main propositions; and it would be difficult to disturb the verdict, except, perhaps, upon some technical mistake of the judge in making response to the score and more of requests made by the defendant's counsel for instructions to the jury.

It would not be strange if some technical error was committed in attempting to respond at the instant to so many legal propositions adroitly put, and in forms involving nice distinctions and great refinements. The whole case was substantially disposed of, so far as was necessary to the fair and full submission of the questions of fact to the jury, with such 'instructions as were needful to enable them to give an intelligent verdict by the judge in answer to the four requests of the plaintiff's counsel; and the first question is as to the character and extent of the agency of Metcalf & Duncan.

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Opinion of the Court, per ALLEN, J.

If the judge erred as to that the verdict and judgment were rightly reversed, and it will not be necessary to consider the other questions made. That the agency of the persons named was special, and known to the plaintiff to be special and not general, is not disputed. The authority conferred was for a special purpose, and confined to a single act, and is within the definition of a special, as distinguished from a general, agency. (Story on Agency, § 17; Anderson v. Coonley, 21 W. R., 279.)

In the case of a special agency the principal is not bound by the acts of the agent beyond the limits of the authority conferred. The authority must be strictly pursued ; and it is the duty of a party dealing with a special agent to ascertain and know the extent of his powers. If he omits to do so it is at his peril, and he takes the risk of the authority. He is held chargeable with notice of the extent of the agent's authority as it exists in fact. (Munn v. Commission Co., 15 J. R., 44; Beals v. Allen, 18 id., 363; Delafield v. State of Illinois, 26 W. R., 192.)

While the powers of a general agent may be liberally construed according to the necessities of the occasion and the course of business, those of a special agent are limited by the terms in which they are conferred. The authority relied upon in this case was in writing, and consisted of a dispatch by telegraph from the principal to the agents, which was communicated to the plaintiff.

There was nothing concealed from the plaintiff; and the assumed and apparent authority of the agent was precisely that actually conferred. The telegraph dispatch was, “Send me small tow-boat. * * Make the best bargain you can." The plaintiff was told by the agents, upon their first application to him, that they had received “a telegraphic dispatch from Lewes to send down a small tug-boat to the Antietam.” The bark Antietam, owned by the defendant, was ashore at the Delaware breakwater, and the tug was wanted to aid in getting her afloat.

The want was immediate and the purpose temporary; and

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