27 A.D. 447 | N.Y. App. Div. | 1898
This action was brought in a Justice’s Court against the appellant Letitia Evans and her husband, De Forest J. Evans, to recover for a quantity of ice alleged to have been sold them by the plaintiff at the Cascadilla Building, in the city of Ithaca, in the summer of 1895. A judgment, was obtained in favor of the plaintiff, and the defend- ' ant Letitia Evans appealed to the County Court of Tompkins county where a new trial was had. On such new trial the county judge directed a verdict in favor of the plaintiff, and judgment was thereupon entered in his favor against the defendant Letitia Evans, from which she has taken an appeal to this court.
It was shown on the trial that, prior to the delivery of the ice in question by the plaintiff at the Cascadilla Building, the defendant Letitia Evans, being the owner of a house on Stewart avenue in the city of Ithaca, had conducted therein, on her own account, the business of taking lodgers and boarders. The plaintiff had furnished ice to her at said place, but had charged the same and given credit therefor to her husband, who was acting as her agent, the plaintiff at the time being unware that the business was, in fact, that of the appellant. When . the new business was started in the Cascadilla Building in the summer of 1895 by the defendants, or one of them, he also charged the ice there delivered to De Forest J. Evans, and
Had this case been submitted to the jury, we are disposed to think that the evidence would have sustained a finding that the appellant was the party who carried on the business at the Cascadilla Building at the time in question. The lease was taken in her name; the furniture therein, or the greater part thereof, was owned by her, and certain declarations and admissions on her part were proved, all tending to show that she was the proprietor of the business there carried on.
But there was other evidence in the case, tending to show a contrary state of facts, sufficient to authorize a finding by the jury in favor of the appellant.
Both of the defendants testified on the trial that the business at Cascadilla place was,' in fact, that of the husband ; that the appellant had no interest whatever therein; that while that business was being conducted, she was engaged with her own business at her house on Stewart avenue. De Forest J. Evans testified that the icé was contracted for by him of the plaintiff in his own name. It was shown that it was charged to De Forest J. Evans on plaintiff’s books, and the bills therefor, made out by the plaintiff against De Forest J. Evans, were introduced in evidence on the trial.
We think that, on the evidence, the court was not authorized to direct a verdict, but should have submitted the questions of fact in the case to. the jury. A verdict can only be directed where the evidence is undisputed, or so certain and convincing that a reasonable man could come to but one conclusion. “ If there is ground for opposite inferences, and a conclusion either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy.” (Bagley v. Bowe, 105 N. Y. 171, 179 ; Bulger v. Rosa, 119 id. 459.) We do not deem it necessary, and will not undertake, to recapitulate the testimony. It is sufficient to say that, under the doctrine stated in the above-cited and kindred authorities, it raised a question of fact which should have been submitted to the jury.
The answer to this position is that the business carried on at the Cascadilla Building was a new, distinct and different enterprise from that conducted at Stewart avenue. It was not a continuation of the same business that was and had been carried on at the latter place, and from the testimony the jury could have found that this new and different business conducted at the Cascadilla Building was' carried on by De Forest J. Evans on his own account,, and that he contracted for the ice in question with the plaintiff in his own name.
■ Again, the ice furnished- at the appellant’s house on Stewart avenue was not sold on-her credit, but on- .that of her husband. She was an undisclosed principal, and the plaintiff was not aware of the agency of De Forest J. Evans. Hence the plaintiff did not after-wards deliver the ice in question at Cascadilla place on the credit of the appellant, but on that of her husband. He intended to and did sell the ice to the latter on his credit. The doctrine that one who has dealt with an agent in a matter within his authority, has a right to assume in subsequent dealings with him, unless otherwise informed, that the agency continues, cannot be held to apply to a case where the agent of an undisclosed principal afterwards embarks in a new enterprise in his own name, the fact that he ever was an agent being unknown to the party with whom he deals.
Counsel for the respondent calls our attention to authorities holding that one who has had dealings with a copartnership without being aware of the names of its members, can hold one of the partners who has retired from the firm responsible on account of dealings with the . firm subsequent to such retirement, unless he has received actual notice thereof. (Elmira Iron & Steel Rolling Mill Co. v. Harris, 124 N. Y. 280; Howell v. Adams, 68 id. 314.) We think the doctrine established in those authorities is not applicable to the case under consideration. One dealing with a copart
There is a clear distinction between the facts considered in the authorities referred to and those appearing in this case. One dealing with a copartnership, although unaware, of the names of its members, relies upon the responsibility of the principal with whom he deals — the several persons conducting business as a firm under a copartnership name which he knows, although he may not know the individual names of the members; and he is entitled, in subsequent dealings with the firm, to notice of the retirement of a member on whose .responsibility in former dealings he has necessarily relied. But in the case under consideration, "prior to the sale of the ice in question, the plaintiff did not know that the appellant’s husband ever acted as her agent in any business carried on at the -house on Stewart avenue or elsewhere. He did not know the appellant in any of his dealings with her husband. In selling the ice in question, which, as a matter of fact, the jury could have found from the testimony was sold to De Forest J. Evans, he did not rely upon her responsibility. He did not charge it to her, and he sold it, relying upon the credit of her husband.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.
