141 N.Y.S. 220 | City of New York Municipal Court | 1913
The plaintiff instituted this action to recover the value of merchandise' sold to defendant at his request. The defendant by its answer admits the plaintiff’s claim, but alleges as a defense to the plaintiff’s cause of action a counterclaim in the sum of $500 as damages sustained by the defendant on the failure of the plaintiff to comply with a certain agreement for the delivery of certain lumber at a fixed price. On the trial hereof, after both sides had rested, the plaintiff moved to dismiss the counterclaim and for a direction of a verdict for the sum of $932.18, inclusive of interest, upon the ground that the defendant failed to; prove facts to sustain said counterclaim. The plaintiff’s claim is admitted by the defendant’s answer; said motion was thereupon granted. Thereupon defendant moved for a new trial on all the grounds stated in section 999 of the Code of Civil Procedure. The facts as alleged by defendant to sustain its counterclaim briefly stated are as follows: On May 16, 1911, defendant’s treasurer had a talk with a Mr. Reare and received an order in writing from said Reare, in his handwriting, with his signature at the bottom thereof: “ W. R. Reare, for R. C. Lippincot,” for the purchase and delivery of a certain, kind of lumber, which lumber was subsequently delivered and paid for; that thereafter and on or about the month of May, 1911, under a similar order signed as the above for the delivery of certain kind of lumber known as yellow pine flooring, which was shipped by defendant, and, after certain deductions and allowances having been made thereon, left a balance due in the sum of $8^1.88, which amount defendant admits is due
“ ¡New York City, August 22-11.
“ Sold — The East Biver Mill & Lumber Company, foot E. 92d St. Consign them - Bulkhead, 93d and 94th streets, East Biver. 250 M. 13-16x2% F. G-a. Y. P. Elg. B. & Butler. D. 25 and M. Scratch Buck, Standard Working and Grading at 25%. First ship, in 3 weeks via Str., subject to approval and acceptance for balance of order. If satisfactory the balance of order to come in shipments every 10 days. Fot. Cash, Balance 3 months note of 2^ 30 days from date of invoice.
“ (Signed) W. B. Bears, for B. O. Lippincot. ”
That said lumber was never delivered, and for the failure of plaintiff to deliver the same the defendant alleges its damages to be the sum of $500, for which it counterclaims as aforesaid. The paper or alleged order aforesaid was excluded when offered in evidence upon the ground that defendant failed to prove the alleged agency of Beare or ratification of his acts by plaintiff. Certain trade journals were offered in evidence showing that the said Beare was in the lumber business in Jersey City and the plaintiff in business in the city of Philadelphia. Said advertisement was for the sale of lumber, which advertisement contained at the head thereof the name of the plaintiff and at the bottom the name W. B. Beare only, and as said advertisement contained the plaintiff’s name the defendant concludes that it is some evidence of ratification of the agency of Beare. The said Beare may have only been a broker for the sale of lumber and in business solely on his own account and not as an agent for the plaintiff. The burden of proof is on the defendant to establish the agency, and where the burden of proving by a preponderance of evidence a third party’s agency for the defendant rests upon the plaintiff as essential to a recovery, it is proper for the court to direct a verdict for the defendant
Motion denied. ■