145 N.Y.S. 152 | N.Y. App. Term. | 1913
Lead Opinion
This action was brought to recover damages for the breach of a contract of sale. The facts are, that the plaintiff was the employee of a commission
“February 10th 1913.
“ C. H. Hager sells E. B. Phelps 100 cases f. g. firsts delivered within 26 days at 21c per dozen.
“ (signed) C. H. Hager
“ E. B. Phelps.”
The plaintiff and Phelps both testified that this purchase was made on account of the defendants and testimony was introduced to show that it was the usual custom to make the memorandum in the name of the individual with whom the deal was made rather than in the name of the firm that he represented. Sufficient evidence was given as to a course of dealing on Phelps ’ part, both with the plaintiff and others, to establish his authority in this manner to bind the defendants. The defendants maintain that this was a gambling transaction between the two employees and that had Phelps made a profit they would have never heard of the transaction, but when a loss resulted Phelps sought to saddle them with it.
However plausible this may seem, there is no evidence to sustain such an inference. Phelps testifies that he had sold 100 cases of eggs to be delivered in thirty days at twenty-two cents per dozen to one Augenblick and that he was criticized by defendants and that he made this transaction to cover that transaction. That subsequently eggs advanced to twenty-four cents but later declined and that one of the defendants stated to Phelps- that he should cover the Augenblick sale. That Phelps then informed him that
The appellants contend that this action cannot be maintained. because of a change in the Statute of Frauds as enacted (Laws of 1911, chap. 571), “ a contract to sell or a sale of any goods * * * of the value of fifty dollars or upwards shall not be enfcreíble by action * * * unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. ’’ The learned counsel argues that the change from “ his lawful agent ’’ in the old law to ‘‘ his agent in that behalf ” has limited the agent who can bind the principal to one who signs the principal’s name and is authorized to sign his name.
I think the restriction of authority is to one authorized to act in the transaction and thus approaches more nearly the language of the original statute ‘‘ their agents thereunto lawfully authorized. ’’ Dykers v. Townsend, 24 N. Y. 57, is still good law.
It is undisputed that Phelps made the contract with the plaintiff in his own name for the defendants as disclosed principals and that the plaintiff so understood the transaction. Therefore, whether the custom of the exchange to make contracts in the names of individuals was proven or not, the defendants are
Judgment should be affirmed, with costs.
Whitaker, J., concurs.
Dissenting Opinion
The plaintiff sues the defendants upon a written contract for the sale and delivery of eggs. The contract reads:
“ G. H. Hager sells E. B. Phelps one hundred (100) cases f. g. firsts delivered within 26 days, at 21 cents per dozen.
“ C. H. Hageb,
“ E. B. Phelps.”
E. B. Phelps was at the time an employee of the defendants. He testified: “ I was under a contract whereby I participated in the profits and kept a separate ledger of my own transactions.” The plaintiff seeks to hold the defendants as the principals of E. B. Phelps upon this contract.
There is in my opinion sufficient evidence to sustain a finding that Phelps had at least sufficient apparent authority to bind the defendants to a contract for the sale of purchase of eggs, and in my view the real question in this case is whether he was in fact acting for the defendants in making this contract or whether he was acting for himself, both actually and apparently.
The contract is in form Phelps’ individual contract, and if in fact this contract was made by him for his own benefit, and he did not expressly or impliedly represent that he was acting for the defendants, then the plaintiff cannot hold the defendants. It is claimed by Phelps that he entered into this contract for future purchase in order to provide the eggs for another contract for future sale which he had made, concededly for the defendants’ benefit, or in popular phraseology “ to cover ” the other contract. There is some semblance of probability lent to this story by the fact that the date of delivery of the eggs in the contract upon
Upon this issue we have several very significant pieces of evidence. Of course the most significant fact is the contract itself made in his individual name and to overcome this fact the plaintiff is bound to show some satisfactory reason why the contract was made in this form. Phelps and the plaintiff explain that the reason why the contract was made in this form is “ because all business in the ring between members of the exchange has to be done as individuals, they do not recognize firms.”
It appears that this contract was not made ‘ ‘ in the ring ” at the exchange, but was an unusual transaction made at a restaurant, and, therefore, not subject to the rules of the exchange; yet while the rules of the exchange are not applicable to this transaction made off the exchange, still the custom of the dealings made under the rules of the exchange might well be considered material upon the intent of the parties in transactions made off the exchange. However, a careful reading of the testimony will demonstrate that' neither the rule nor custom of the exchange can help the plaintiff establish bis cause of action.
The plaintiff was asked on cross-examination: “ Why didn’t you write in the name of Henneberger & Herold,” and he answered: “ It is customary'when
Even if, however, I have misinterpreted this testimony and it is only fair to say that there are so many contradictory statements on this point that it seems to me quite impossible to determine definitely on this record whait the rules or customs of the exchange require in regard to future sales, yet I still would hold that no custom of the exchange in regard to future sales would affect this transaction.
It is practically undisputed that in sales made off the exchange it is the custom to make the contract in the principal’s name. It would also appear that future sales made under call on the exchange require the deposit of an original margin to protect the parties, and that the question of personal liability is of minor importance. It would seem, therefore, that a custom, if it exists, of not disclosing the principal upon such contracts, could have little materiality in enabling us to determine the intent of parties making a contract for future sale, without deposit of margin and not on the floor of the exchange.
I am therefore constrained to hold that the plaintiff’s testimony that this contract was in fact made for
The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.
Judgment affirmed, with costs.