I am unable to concur in the opinion of Mr. Justice Laughlin. At the trial two questions of facts were presented: (a) Whether Grassmuck had' authority to represent defendant, and (b) whether the defendant promised to pay plaintiff for the repairs upon Hamilton’s car. The jury found *29in favor of the plaintiff upon both questions and a consideration of what appears in the record will, it seems to me, show there is sufficient evidence to sustain the findings.
The defendant is a domestic corporation engaged in the business of insurance brokerage at Ho. 1 Liberty street, Hew York city. Occupying the same office, at the same address, is a firm by the same name, composed of the same men who compose the corporation, and engaged in the same business. One Hamilton, the owner of an automobile, procured insurance on his car in a foreign insurance company represented either by the corporation or the firm, which, does not clearly appear. This car was taken to the plaintiff’s shop for repairs made necessary by an accident covered by the insurance. Plaintiff’s vice-president testified that shortly after the car reached the plaintiff’s shop, Grassmuck, who was connected with the office of the defendant and the firm of the same name, entered into negotiations with the plaintiff as to what it would cost to repair the car; that on being told approximately what the cost would be, he asked that a special reduced price "be made for the defendant, which was agreed to, Grassmuck stating that the repairs would he paid for by Sewall & Alden delivering a check for the amount agreed upon to Hamilton, and requiring him to immediately indorse it over to the plaintiff; that this was necessary in order to obtain a voucher from Hamilton for the payment of the insurance money; that the estimate of the cost of the repairs, amounting to about $2,100, was thereupon prepared by the plaintiff and mailed to “Sewall & Alden, 1 Liberty St. City; ” that thereafter Grassmuck directed that the repairs he made and on being requested to sign his name to the estimate, before any work had been done on the car, he refused, hut instead signed the following:
‘‘ July 16th, 09.
“ Messrs. Renault Pebres Selling Branch, Inc.,
“ 214 West 65th St.,
“ Hew York City.
“Dear Sirs.—We have received your estimate of $2,100, for the repair of Mr. Schuyler Hamilton’s Renault runabout. It is our understanding- that this estimate is subject to a revision after the actual work has been completed, and we are *30satisfied that you proceed with the work on Mr. Hamilton’s car according to the several conversations and understandings which we have had from time to time with you.
“ Yours truly,
“SEWALL & ALDEN.”
The repairs were thereupon made and a bill therefor made out in the name of Hamilton, and sent to Sewall & Alden, 1 Liberty street. After the sending of Such bill, Grassmuck called upon plaintiff’s representative and stated the bill had been received but defendant was entitled to a reduction, and after negotiations, the bill was finally reduced to $1,750. According to one of plaintiff’s witnesses, Grassmuck stated after the reduction was made that he would immediately take the matter up with Mr. Sewall, the president of the defendant, and arrange when a check should be given to Hamilton and indorsed over to the plaintiff. The bill was not paid and on the thirteenth of October plaintiff wrote a letter to defendant addressing it “Sewall & Alden, 1 Liberty St-, City,” in which a settlement of the bill was requested. In response plaintiff received a letter signed “Sewall & Alden,” saying: “We beg to acknowledge receipt of your favor of October 13th, asking that we have the bill of repairs on the Hamilton car settled just as soon as possible. We are very much surprised to receive this note, for the reason that we settled with Mr. Hamilton, handing him our draft for $1,750, on October 6th, and understood that •he was to endorse the'draft over to you immediately. The settlement was arrived at between yourself, Mr. Ward from our
head office, and Mr. Sewall, and was as follows:
Estimate accepted by this company.....•............ $2,150.
Less allowance on body as agreed with Mr. Hamilton. 250.
. $1,900.
Less deduction allowed on parts................,... • 150.
Net amount.................................... $1,750.
“We will take this matter up with Mr. Hamilton and will do all- possible to see that you receive the settlement in the immediate future.”
*31Nothing further was heard from the defendant and on November nineteenth plaintiff again wrote, saying: “We were authorized by you to go ahead with the work. You accepted our estimate and it was agreed that the check in settlement would be turned over to us in the presence of Mr. Hamilton, from whom you were to get, at the time, regular release.”
On the twenty-sixth of November plaintiff received a letter signed “Sewall & Alden, M. J. L.,” saying: “In reference to your recent communication regarding Mr. Hamilton, we beg to say that we are very much surprised that he did not turn this draft over to you as he agreed that he would do. Our chief adjuster, however, is a friend of Mr. Hamilton’s and he has been instructed to keep after him until he finds him and further to insist upon an immediate settlement with you. We do not blame you at all for being put out over this situation and thoroughly believe that the matter will be closed up to your satisfaction within a very few days.”
Both of the replies to the plaintiff’s letters last referred to .were written or dictated by Sewall, president of the defendant..
The plaintiff’s vice-president also testified that upon six previous occasions G-rassmuck had given orders to the plaintiff for repairs on behalf of the defendant; that on such orders repairs were made; that the bills therefor were rendered to the defendant, and paid by it.
Taking the evidence all together it seems to me there was sufficient to justify the jury in finding that Grassmuck had authority to and did act for the defendant. Such authority, if not expressly, was impliedly given and plaintiff had a right to rely upon it.
It is conceded in the preváiling opinion that it does not appear the plaintiff, prior to making the repairs, was aware of the fact that Sewall & Alden constituted a firm and was engaged in the same business as the defendant. If plaintiff did not know of the existence of the firm it is difficult to imagine upon what theory, in view of prior transactions, the defendant can here escape liability on the ground that the firm gave the order, and not the corporation. The prior transactions, as already indicated, consisted in defendant’s having similar repairs made and paying the bills therefor. Honesty and fair dealing *32required the defendant, if the transaction in question were by the firm and not by the corporation, to so inform the "plaintiff.
In any view in which the evidence set out in the record is considered, it seems to me a question of fact was presented, both as to Grassmuck’s authority and defendant’s promise to pay, and it cannot be said that the finding of the jury upon either one is against the weight of evidence. I, therefore, dissent and vote for affirmance,
Clarke, J., concurred.
J udgment and order reversed and new trial ordered, with costs to appellant to abide event.