The plaintiff purchased from the defendant, a dealer in furniture, certain household furniture for the purchase price of $909.25 of which $100 was paid on account and two chattel mortgages given to the defendant to secure payment of the balance which was to be paid in monthly installments. The plaintiff had paid in all $295 including the May installment. In May, 1918, the plaintiff, desiring to remove from the city for the summer months, applied to the defendant for leave to remove and store the furniture pursuant to the requirements of agreement of sale. He saw McGrath, the defendant’s credit man, through whom the plaintiff had purchased the furniture. McGrath arranged with the plaintiff to store the furniture in the defendant’s warehouse, and agreed to store it free of charge. The furniture was removed to the defendant’s warehouse and on June 15, 1918, was destroyed by fire. This action was brought to recover the sum of $295, the value of plaintiff’s interest in the furniture over and above the unpaid amount of the chattel mortgages of the defendant upon an alleged agreement of the defendant to obtain insurance on the furniture against loss by fire, which defendant failed to perform. The defendant denied the making of such agreement and upon trial denied McGrath’s authority to make the agreement to obtain insurance on the furniture. It is further argued on this appeal that such agreement was without consideration.
McGrath made the agreement to store the furniture, as agent for the defendant, and the defendant accepted the goods and stored them without compensation and did not suggest that he did not have power to make that agreement. It was within the apparent scope of his authority to make any agreement that might relate to such storage. The insurance of the property during storage was suggested by him. Plaintiff’s evidence, which was accepted by the jury, was that when the plaintiff said he would have the furniture insured by an agent of his acquaintance, McGrath offered to take out the insur*847anee, as the defendant, having a large amount of insurance, could secure it cheaper, and to send the bill for the premium with the bill for the June installment. The plaintiff’s abandonment of hi's purpose to insure, in reliance on the defendant’s promise, was a sufficient consideration for the defendant’s promise. Furthermore, both had an interest in the property and the insurance was for their mutual benefit. This alone would have supported the promise to insure. The jury returned a verdict for the plaintiff for $275. He was entitled to receive as his damage the value of the furniture, less the amount he owed the defendant on account of the purchase price. There was no proof that the plaintiff had actual notice that the defendant had not insured the furniture. No demand had been made for the payment of the June installment, and notice cannot be implied from failure to send a bill for the premium. Under such circumstances, the measure of damage is the value of the property up to the amount of insurance which the defendant was to procure. (Marconi Wireless Tel. Co.v. Universal T. Co., Inc., 194 App. Div. 272.) The plaintiff testified that McGrath said he would take out insurance for the "full amount. While the furniture had been in use, there was evidence that it was in first class condition and not marred or scratched. The price of furniture had increased since the purchase of this furniture fifty or seventy-five per cent, according to defendant’s testimony. For these reasons, defendant’s criticism that there was nothing in the proof to justify the amount of the verdict is unwarranted. The question was one of value, and the jury had the right to take into consideration the purchase price of new furniture at the time of the sale and at the time of the fire, and make such allowance for depreciation as they thought the evidence warranted.
The determination of the Appellate Term should be affirmed, with costs.
Clarke, P. J., and Greenbaum, J., concur; Dowling and Smith, JJ., dissent.