3 Rob. 249 | The Superior Court of New York City | 1865
The defendants, in their answer and by their proofs, have endeavored to show that they did not purchase the goods from the plaintiff, but from one ’ Victor Fleury, who owed the defendant a large amount of ■ money which they seek to offset. The plaintiff, on the contrary, alleges that Fleury was only his agent, and that consequently, the set-off claimed by the defendants cannot be allowed.
There is but a single question in the case, and that is, to whom was the credit in the transaction given—to Victor Fleury or to the defendants ? I am satisfied, from a careful examination of the facts, that the credit was given to the defendants. Fleury, the agent, testifies that the leather belonged to the plaintiff, and that he (Fleury) simply sold the skins to
Indeed it is seen from a careful examination of the defendant Maas’ testimony, that he knew the goods were the plaintiff’s, and admits he owed the money to Nottebohm, and not to Fleury.
Some stress is laid by the defendants upon the fact that the bill for the goods was made out in the name of Fleury. The making out of the bill was not done by the plaintiff; it was done by Fleury, at the defendants’ request, and was done, no doubt, to fix the credit on Fleury. The making out of the bills, however, in the name of Fleury, is of no consequence, so long as the credit was given to the defendants ; moreover, the bills, themselves show that the proceeds of the sale were to be paid to the plaintiff.
It is quite clear, therefore, from the evidence, that Fleury was acting as agent of the plaintiff at the time of the sale, and that he disclosed his principal, and that the defendants knew they were dealing with Fleury as agent of Nottebohm, and were consequently bound to respond to Nottebohm, unless there was some special agreement between the plaintiff and defendant to the contrary, and of this there is no evidence.
The referee, in passing upon the facts of the case, took all these questions into consideration. His findings are in favor of the preponderance of proof; the judgment already entered cannot, consequently, be disturbed.
The evidence in this case is sufficient to sustain either a finding that the plaintiff sold the goods in question to the defendants, or one that he transferred to them his interest therein, or lien thereon, to the extent of the whole purchase money. Fleury sold them as his agent, to reimburse him to the extent of his advances, which he test
Judgment affirmed, with costs.