Copp v. Gabler — 95 A.D. 164

Majority

p. 164

Charles W. Copp, Respondent, v. John C. Gabler, Appellant.

Headnote

Action for the value of goods sold,—proof that a third, person, when, making a partial payment for the goods, stated that he did so on behalf of the defendant is incompetent.

In an action brought against John 0. Gktbler to recover the value of goods sold and delivered, the issue litigated was whether the goods were sold and delivered to the defendant or to one Peck.

It appeared that Peck, who- had no authority to represent the defendant, had, in the latter’s absence, paid the plaintiff $100 on account of the goods.

p. 165

' Held, that it was improper to allow the plaintiff to testify that, at the time Peck made the payment, he stated to the plaintiff that he made such payment on the defendant’s account and that the defendant had' told him to do so.

Appeal by the defendant, John C. Gabler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 22d day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of December, 1902, denying the defendant’s motion for a new trial made, upon the minutes.

Jacob Gordon, for the appellant.

Arthur Van Dewater, for the respondent.

The complaint alleges a cause of action against the defendant for goods, wares and merchandise, sold and delivered, of the value of $345.99, which the defendant promised to pay, and that no part of the same has been paid except the sum of $100. The answer is a general denial. On the trial it was stipulated between, the parties that the lumber and other building material mentioned in the complaint were delivered to the defendant, and that the value thereof is as stated in the complaint, and that the only issue to be tried is to whom the goods, the lumber and other building material were sold. The defendant did not purchase the goods of the plaintiff in person; his agent Allen opened negotiations with the plaintiff’s business house for the supplying of this lumber which was delivered upon the premises of one Peek, for the erection of a building for the latter. The plaintiff relies especially upon an instrument in writing which he claims was a contract between Peck and the defendant, by the terms of which the defendant agreed to build for Peck the structure for which the lumber and other materials were supplied, “ and supply all labor and material ” for the same for a given sum of money. Allen, the defendant’s agent, testified in behalf of his principal that he made arrangements with those in charge of the plaintiff’s business that credit for the lumber and building materials was to be given and extended to Peck. There was evidence on both sides of the controversy, and all of the testimony presented a clean-cut question of fact, whose solution by

p. 166

the jury could not have been otherwise than difficult on account of the evenly .balanced weight of evidence, and were it not for the error in the admission of the evidence which we will discuss, the judgment should -be affirmed.

There was no dispute upon the trial that $100 had been paid in part satisfaction of the plaintiff’s demand, and it developed that Peck had paid this sum himself.' On the redirect examination of the plaintiff he was asked this question: “ What conversation was had between you and Mr. Peck at the time he paid you that money % ” This was objected to as incompetent, irrelevant and hearsay, and not binding on the defendant. The learned trial court overruled the objection, and defendant excepted. The witness then answered “Mr. Peck brought in a check for $100, and said that he would pay that on Mr. Gabler’s account. Q. Mr. Gabler had told him to pay that money ? A. That is the way 1 got it.”

. The issue that was litigated presented the question whether the goods were sold to Peck or defendant Gabler, and á statement by Peck to the plaintiff that he would pay $100 on Mr. Gabler’s account, and that Gabler had told him to pay that money was hearsay ; the conversation was in thé absence of' the defendant, and under lyell-settled principles was clearly incompetent. As Mr. Justice Sewell remarked in Abrams v. Braunstein ( 64 App. Div. 538 , 539), speaking of similar evidence: “It was not part of the res gestes, but a mere declaration of statements made by a third person, with which the plaintiff was not chargeable; ” and the judgment in that case was reversed for the recéption of that character of evidenced No claim was' made that Peck was acting in any, manner in this transaction, or any other, as agent for the defendant Gabler or had authority to represent him in this payment, or to speak for him in the transaction, and no evidence is to be found after a Careful examination of the record to support such a contention. We cannot say that the reception of the evidence did not affect the result.

For this error the judgment must be reversed.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

Cases cited

Abrams v. Braunstein 64 App. Div. 538 N.Y. App. Div. 1901-10-18 at 539 p. 166