31 Misc. 715 | N.Y. App. Term. | 1900
The claim of the plaintiff, as upon the earlier trial, is based upon a conversation alleged to have taken place between the parties, concerning his employment as an undertaker to bury the wife of one William Osborne. Pie testified that after a conversation with the husband of the deceased concerning the cost of the funeral, he declined to proceed, as he was hot satisfied as to the latter’s pecuniary ability, whereupon the husband declared that his aunt, one Mrs. Dean, by whom he was at the time employed, would pay the bill. The plaintiff, for the purpose of having the order confirmed, then went to the residence of Mrs. Dean, and there met the defendant, who informed him that her mother was' ill and could not be seen, but “ she would do as well.” The plaintiff then stated he had called for the purpose of having an order for the funeral of the wife of William Osborne confirmed, and a conversation then ensued regarding the amount of the charge therefor, the defendant asking where it could be reduced, and he pointing out in what, regard it could be done. According to the plaintiff’s testimony, the defendant then stated that they ought to take the cheaper coffin to make it twenty dollars less, “ and we agreed upon the amount of $70, and she told me it was all right, to go on and do the work ”; and further directed plaintiff to forward the bill to Mrs. Dean, which he did. Viewing, as we must, the foregoing testimony in the most favorable light to the plaintiff, it is manifest that it was not the intention of either party that the defendant should become personally responsible for the funeral expenses. The object of the plaintiff in calling at the residence of Mrs. Dean was to obtain her guarantee for the payment of the bill, but by mere chance met the defendant, to whom he stated the purpose of his visit. It is clear even from the plaintiff’s version of the entire conversation had between them, that each understood that the defendant was acting merely as a representative of Mrs. Dean, and not individually, and that credit was given to Mrs. Dean. The subsequent acts of the plaintiff confirm this view;
Hpon comparing the testimony of the plaintiff as set forth in the opinion of the court, delivered by Mr. Justice Leventritt, upon the former appeal (30 Misc. Rep. 117), with that given upon the trial which is the subject of this review, it is obvious that the testimony of the plaintiff is an afterthought, and was given with a view of fastening, if possible, a personal liability upon the defendant for the services in suit. There the pláintiff testified: “ I told her (defendant) 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.” Here, as above noted, the plaintiff gave testimony to the effect that the defendant told him “ to go on and do the work.” The position thus assumed by the plaintiff is inconsistent with all his acts subsequent to the alleged conversation with the defendant. Apart from this, the husband of the defendant testified — and he was not contradicted by the plaintiff — that during the course of a conversation had with the latter, he asked him whether his wife “ had said anything in regard to the matter of making her responsible,” . and that the plaintiff replied: “ Never, it is Mrs. Dean who is re
With respect to the other alleged ground of liability, the justice charged the jury: “ If you believe from the testimony here, and I charge you that there is testimony that may support that contention — that Mrs. Peffer did, in her dealings with Mr. Balm-ford, exceed her authority which she had in trying to make Mrs. Dean liable for this bill, then Mrs. Peffer is responsible herself for it.” The defendant duly excepted. From a consideration of the record, we are satisfied that the exception was well taken. Mrs. Dean was not called as a witness, and in the absence of evidence touching the defendant’s authority to act for the latter, we cannot indulge in the presumption that when, as testified, the defendant told the plaintiff that her mother would pay towards the bill ten dollars a month, so long as William Osborne worked for her, she neither acted without authority nor exceeded such authority as she possessed. The justice, therefore, erred in charging the jury that there was evidence that the defendant in her dealings with the plaintiff had exceeded her authority, and the error was not cured by the subsequent instruction that it was incumbent upon the plaintiff to prove the unauthorized assumption of authority on the part of the defendant.
It follows from the views above expressed that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Beekman, P. J., and O’Gorman, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.