30 Misc. 117 | N.Y. App. Term. | 1899
It is apparent that there is no foundation for the judgment rendered.
The plaintiff, an undertaker, sued for the balance due him for services rendered' for ■ the funeral of the wife of one William Osborne.- He claims*that the liability of the defendant-ensued from a conversation had with her concerning his employment. The order was given by the husband of the deceased, but the plaintiff, declining to rely on the husband’s responsibility, was referred by him to his aunt, Mrs. Dean, who, he said, would guarantee the payment of the claim. The plaintiff testifies that he called at the house of Mrs. Dean for the purpose of having the order confirmed, but that he there met only the defendant, who informed him that her mother was ill and could not see him. In response to her inquiry as to what was wanted he testified that he replied: “ I told her my business, and she said that it was all right, that Mrs. Dean would be security for the amount. Before saying that she changed the order and lessened it by twenty dollars * * * and said to go on and send the bill to Mrs. Dean.”
It is on this that the plaintiff bases his employment. We are unable to deduce any meeting of the minds from this conversation. It was obviously not the intention of either party that the defendant should become the debtor or personally bound. He spoke to her as representing Mrs. Dean; he did not' seek to make a contract with her. He went there with the avowed intention of securing Mrs. Dean’s guaranty, and addressed the defendant only because she represented the party with whom he proposed to contract. If there could be any doubt as to the intention of the plaintiff that is dispelled by his subsequent acts, consistent only with a purpose to look to Mrs. Dean for payment. Immediately’ after the performance, of the seryices, the plaintiff sent á bill to Mrs. Dean, and when later payment of a part thereof was made, he rendered a receipt running to her. There
Under these circumstances it is unnecessary to consider the defendant’s version which, to say the least, does not strengthen the plaintiff’s case.- On his own showing he must look to Mrs. Dean for payment, or establish by some testimony that the defendant acted-without or in excess of authority. '
As the record now stands the judgment must be reversed.
Freedman, P. J., and MacLean, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
