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Gleichenhaus v. Taft

120 N.Y.S. 66 Court N.Y. App. Term Decision date 1909-12-22 English

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p. 66
GLEICHENHAUS et al. v. TAFT.
(Supreme Court, Appellate Term.
December 22, 1909.)

Headnote

Sales (§ 52[1] )—Action for Price—Evidence—Sufficiency.
Evidence in an action for the price of goods sold held not to show a sale or delivery to defendant, either personally or as agent for an undisclosed principal.
[Ed. Note.—For other cases, see Sales, Dec. Dig. § 52.[1] ]
Appeal from Municipal Court, Borough of Manhattan, First Dis- ■ trict.
Action by Leopold Gleichenhaus and another against James H. Taft. From a judgment for plaintiffs, defendant appeals.
Reversed, and new trial ordered.
Argued before GIEGERICH, GOFF, and LEHMAN, JJ.
Hugart F. Norman, for appellant.
Marcus A. Scherman, for respondents.

The plaintiffs have brought an action against-the defendant for the value of goods which, they allege, they delivered to the defendant on memorandum, and which he refused to return. They allege in their complaint that the defendant is doing business under the name of Taft & Co. The answer is a general denial.

It was conceded at the trial that the goods were delivered to Taft & Co.; but the defendant claims that Taft & Co. is a corporation, and not a personal trade-name. The plaintiffs’ evidence shows that the transaction was not with the defendant personally, but with his manager; that they did business only with Taft & Co., and not with the defendant personally, and the goods were addressed and delivered to Taft & Co. at 872 Broadway. The defendant then testified that he was not engaged in business under the name of Taft & Co., and that Taft & Co. was a corporation; and the certificate of incorporation was introduced in evidence. There is,- therefore, no evidence of any contract with or delivery to the defendant, either as principal or as agent of an undisclosed principal. The respondents’ brief is based upon evidence which they never produced at the trial, and which we cannot consider.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event.