46 N.Y.S. 97 | N.Y. App. Div. | 1897
The action was brought to recover damages for breach of contract. The main question arising upon this appeal is whether the contract was made by the defendant, or' another company known as the National Autographic Register Company. The defendant moved, at the close of plaintiff’s evidence, to dismiss the complaint on the ground that the evidence showed that the contract was made with the Hational Company. The court denied that motion and the defendant excepted. Ho motion to dismiss was made at the close of all the evidence. In its charge the court submitted to the jury the question whether one Shoup, in making the contract, represented the defendant, and upon the request of the defendant instructed the jury that the plaintiff could not recover unless Shoup, in making the contract, did represent the defendant. There was no exception to the charge. A motion was made for a new trial upon all the grounds mentioned in section 999 of the Code of Civil Procedure. Upon this condition of the record the question raised here is whether there was evidence upon which the jury was authorized to find that Shoup, in making the contract, represented the defendant. The defendant was a Hew York corporation, organized in or prior to 1887, and held and owned the patents. The same persons who were interested in the defendant organized the Hational Company. The same person was president of both companies.
Shoup was general manager of the defendant, and'as such commenced the negotiations with the plaintiff prior to the organization of the Hational Company. A large number of letters were written back and forth in the course of. the negotiations. Sometimes the
The remaining questions relate to the amount of damages awarded by the jury. One item allowed. was the cost, of making the machine to. be used by the plaintiff in complying with the contract. The plaintiff claimed that as a part of the contract the defendant agreed to pay for this machine. The defendant denied this. At first it was said that the machine the plaintiff had in use could be changed so as to answer the purpose, and in a. letter written by Shoup, as general manager of the defendant, July 30, 1887, he said: “ Any necessary expense for fitting your machine for this purpose will be paid by this company, etc., etc.” The plaintiff, in giving the language used in completing the contract, October 16, 1887, testified : “ I think I told him (Shoup) that I could not have the old machine fixed over, but it necessitated my having a new machine built complete. * * * He said, go on and have your machine built,” etc., etc. We think, upon this evidence, the jury was warranted in finding an agreement to pay the expenses of making a new machine. .
The court charged the jury that they might allow this item if they .found the contract was made, and there was no exception taken by the defendant to such instruction. The other item of damages allowed was the value of. 868 ribbons, at. 50 cents, $434. The contract was for 1,000 ribbons, but only 132 were taken and paid for.
The other questions raised by the appellant require no special consideration here. They are not such in any event as to call for a reversal of the judgment or order..
The judgment should be reversed and a new trial ordered, with' costs of appeal to defendant to abide event unless the plaintiff stipulates to reduce the judgment by deducting $138,57, with interest .from October 16, 1887, in which case the judgment, as so modified, should he affirmed, with costs of this appeal to the respondent.
Van Brunt, P. J., Rumsey, Ingraham and Parker, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event unless plaintiff stipulates to reduce judgment by deducting $138.57, with interest from October 16, 1887, in which •case judgment, as modified, affirmed^ with costs of appeal to the respondent.