I cannot concur in the affirmance of the judgment in this case.
The trial court, in granting the motion for a nonsuit, entirely misapprehended and misrepresented the evidence in the case. I quote “ In that correspondence it appears distinctly that Kelly had paid for these barrels and paid it to Carney. There is no dispute about that at all. The letters show it plainly, and Carney says to him: ‘You *627must look to me for that; I ham got this money. * * * It was a good payment, so far as Kelly was concerned, and the money went into the hands of Glor's agent, and that ended the claim, against Kelly.’ ”
It did not appear in the correspondence or-in any way that Kelly ever paid for these barrels to Carney. Carney did not say that he had got the money. There was absolutely no evidence that tlm money for the barrels went into the hands of the plaintiffs' agentv Carney.
Upon this statement, as to payment, which had not the least particle of evidence to support it, the nonsuit was granted.
In fairness to the plaintiffs, the judgment based upon a nonsuit so . granted should be reversed and a new trial ordered.
There is no attempt in the prevailing opinion of this court to justify the nonsuit, upon the ground stated by the trial court, but upon grounds equally untenable, and by nearly as great a misstatement of the evidence. It is said the proof tends to show that Kelly in some manner settled with Carney, and that Carney omitted to pay over the avails to the plaintiffs.
There was no evidence whatever that any such settlement was made. Kelly wrote plaintiffs that he had settled with Carney, and Carney wrote about the deal, by which plaintiffs were to look to Carney for their pay, but this was no proof that any settlement in fact was made, or that Carney received any money or valuable thing from Kelly on account of the barrels.
It is said that the plaintiffs ratified the act of Carney in making the settlement with Kelly by assenting thereto, and that they are estopped from denying that the account was so settled.
These claims are made upon the theory that, Kelly having relied upon such assent and ratification, to his own disadvantage, the plaintiffs should not thereafter be permitted to withdraw such assent and ratification, but the assent and ratification were made upon the statement by Kelly that he had settled with Carney, and it was not proved on the trial that such statement was true. It was not proved that there ever was any settlement to ratify, or that Kelly ever parted with any money or valuable thing in reliance upon such assent or ratification. The representation made by Carney to the plaintiffs in his letter of February 28, 1897, was : “ The difference *628between you and Kelly and I is that you must look to me for your pay. I have money coming to me in March, and I will settle with you the minute I get it.” The reply by plaintiffs in their letter of March 1, 1897, was: “ Note what you say regarding Kelly’s account. That will be satisfactory to us.” That is, their looking to him, and his paying account in March. It was the whole thing that was satisfactory to plaintiffs, not alone the looking to him, unless he paid the account soon.
Note.— The rest of the cases of this term will be found in the next volume, 50 App. Div.— [Rep.The plaintiffs did not seek to take advantage of Carney being their agent, and having no right to receive plaintiffs’ money from Kelly. If he ever received money or any valuable thing in payment of the account, the plaintiffs would have to be content, but there was absolutely no evidence in the case that there was any money or valuable thing parted with by Kelly to Carney to apply on the account.
The nonsuit should not be upheld upon the ground that payment in money was proved to have been made by Kelly to Carney, nor upon any claim of ratification of a settlement between Kelly and Carney, or of an estoppel, preventing plaintiffs questioning a settlement claimed to have been made.
There is no evidence upon either the theory of the trial court, or the majority of this court, to defeat a recovery by plaintiffs, and the judgment resulting from the nonsuit should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment affirmed, with costs.