I am of the opinion that the question whether Garwood had the authority to indorse the checks received in settlement of the account for lumber sold to the defendant is one of law arising -upon the conceded facts of the case, and not one of direct or express authority conferred upon Garwood by the plaintiff, to be determined as a question of fact.
The plaintiff was, in fact, engaged in the business of conducting a lumber yard, under an agreement with Garwood that the latter should have the entire charge and management of the business, and for his services Garwood was to have one-half of the profits. He was to sell the lumber, defray the expenses of the business, carting, a man to handle the lumber and the inspection of it, and these expenses attending the sale were to be by him taken out of the receipts. He fixed the price of lumber sold to purchasers, and was authorized to give discounts. He settled the accounts for lumber sold and receipted bills; in short, as manager, transacted the entire business. He had authority, without the plaintiff’s personal supervision, to receive and pay out moneys in the transaction of the business. He remitted to the plaintiff by his own and customers’ checks. And under their agreement he had the right to retain out of the .avails of the sales for his own use such parts thereof as represented his half of the profits.
It seems to me upon this state of facts, furnished by the testimony of the plaintiff as a witness upon the trial, that the question here is one of power. If Garwood had authority to receive and disburse moneys in the conduct of the business, he had power to reduce to cash the avails of' lumber sold in whatever form received; that the authority carried with it, or included in it, as an incident, all the powers necessary as means to effectuate the purposes for which it was created. (Story Agency, §§ 58, 97.) This, in effect, was the rule applied in the case of Sage v. Burton (84 Hun, 267). There it was left to the jury to find whether or not- the plaintiff Sage told the defendant in the presence and hearing of Abbott, the agent, before the transaction in question, that his dealings with the plain*518tiffs’ firm must be with Abbott, and. having so found it was held that the indorsement of the name of the firm by Abbott upon a check delivered to him by the defendant in settlement of his account bound the plaintiffs; that the payment of the check discharged the defendant from liability to his creditors; that any misappropriation by Abbott was at the risk of the party who set him in motion and put it in his power to perpetrate the wrong. The case of Sage v. Burton was followed in Allen v. Tarrant & Co. (7 App. Div. 172).
The jury having arrived at a correct result, the judgment is right and should be affirmed.