Potter v. American Union Line, Inc.

The plaintiff sued to recover for services rendered-in towing the schooner James W. Elwell in April, 1919, from the Narrows to the sea. He testified that while proceeding to sea his tug met the schooner, whose captain, one Clark, contracted in writing in plaintiff’s presence to pay $150, for the performance of such services. The paper was put in evidence and bore the following signature: “Am. Union Line 11 Broadway. To sea from Bed Hook as agreed $150, A. C. Clark, Master.” Subsequent to the rendition of the services, plaintiff went to the office of the defendant at 11 Broadway, where he informed a young lady in the outer office of the purpose of his- visit, namely, to obtain payment, and was directed by her to see several men in different offices, one of whom notified plaintiff when apprised of his business, that ‘ ‘ the check is all waiting for somebody’s signature; we will mail you this tomorrow.” Neither then or at the time of the trial did the plaintiff know with whom he had spoken, admitting that there was- no name on either *330the desk or the door of,the man’s office who had promised him payment. This was the extent of the plaintiff’s testimony, the defendant offering none and moving for the dismissal of the complaint, which motion was denied. From a judgment rendered in plaintiff’s favor the defendant appeals. The failure of the learned trial court in refusing to grant the defendant’s motion to dismiss the complaint, compels a reversal of the judgment. We do not find a scintilla of proof in the record showing the slightest connection between the captain of the schooner who ordered the work done and the defendant company. The captain’s act in placing the defendant’s name over his signature was clearly not proof of agency on his part, nor was ratification by the company of the contract shown by the later promise of payment made by an unknown and completely unidentified man in the defendant’s offices. Had actual ownership by the defendant of the vessel been shown, the claim of implied power to bind the principal might have been urged, and a different question would be before us. In the absence of any proof of defendant’s ownership of the vessel, or evidence of the captain’s agency for the company, the judgment rendered is without foundation and must be reversed.

Buy and Bijtjr, JJ., concur.

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