Lamb v. Hirschberg

1 Misc. 108 | New York Court of Common Pleas | 1892

Bischoff, J.

The answer denied that defendants “are indebted in any sum whatever upon the alleged cause of action set forth in the complaint,” and did not otherwise deny the allegations of sale and delivery of the merchandise at an agreed price stated. The denial was therefore of a legal conclusion merely, insufficient to raise an issue, (Drake v. Cockroft, 4 E. D. Smith, 34; Emery v. Baltz, 94 N. Y. 409, 411;) and the sale and delivery to defendants, as well as their promise to pay, were admitted, (Code Civil Proc. § 522.) The defense remaining was payment, and it was conceded on the trial that defendants had paid the amount of their indebtedness to one Beaumont, the broker who had negotiated the sale, and who at the time of payment claimed to have authority to collect. This authority plaintiff disputed, and his testimony, taken under a commission, was to the effect that he had never authorized Beaumont to collect the money. Beaumont, called as a witness for defendants, admitted that defendants had paid him; that he had not ac- - counted to plaintiff for such payment otherwise than by charging himself with the amount; and that he had never received specific directions or authority to collect the sum due plaintiff from defendants. He testified, further, that he had received express paroi directions from plaintiff to collect generally; that he had been in the habit of collecting the sums owing for merchandise sold by him on plaintiff’s behalf; and that, except in the instance of defendants’ indebtedness, plaintiff had always ratified and approved the collections. On motion of plaintiff’s counsel, the court directed a verdict for plaintiff, under "objection and exception for defendants. It was error to withdraw the question of Beaumont’s authority to receive payment, as plaintiff’s agent, from the jury. Plaintiff’s denial of'having given such authority was not conclusive, because that of a party in interest, (Elwood v. Telegraph Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 N. Y. 609; Honegger v. Wettstein, 94 N. Y 252;) and evidence of express authority was not indispensable to sustain the defense. It was sufficient if Beaumont’s authority to collect appeared inferentially from a course of dealing between him and his alleged principal. Bank v. Putnam, 1 Abb. Dec. 80; Wood v. Railroad Co., 8 N. Y. 160; Hammond v. Varian, 54 N. Y. 398; Olcott v. Railroad Co., 27 N. Y. 546; Bank v. Clements, 31 N. Y. 33. The judgment appealed from must be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.