Hyperlawhypertext legal database National Perfume Co. v. Jacobson 137 N.Y.S. 856

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National Perfume Co. v. Jacobson

137 N.Y.S. 856 Court Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ. Decision date 1912-11-08 English

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p. 856
NATIONAL PERFUME CO. v. JACOBSON.
(Supreme Court, Appellate Term, First Department.
November 8, 1912.)

Headnote

Husband and Wife (§ 25*)—Agency of Husband fob Wife—Sales—Evidence.
In an action for the price of perfume, ordered by defendant’s husband and_ delivered to her store, where she dealt only in cigars, candies, and stationery, and immediately returned by her unopened, the only evidence that the husband had authority to purchase articles for defendant was the affirmative answer of defendant to the question, “As á rule people know the two of you as attending to the business most of the time?’’ Held, that a finding that the husband was the wife’s agent was not justified.
'[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 148-151, 153, 154, 525; Dec. Dig. § 25.*]
«■For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by the National Perfume Company against Pauline Jacobson. Judgment for plaintiff, and defendant appeals.
Reversed.
Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
. Jacob Kirschenbaum, of New York City, for appellant.
Louis A. Sable, of New York City, for respondent.

The recovery in this case was for a package containing perfume, ordered by defendant’s husband and delivered to her store, where she dealt only in cigars, candies, and stationery, and immediately returned by her unopened. There was no evidence that the husband had authority to purchase articles for defendant, except the affirmative answer of defendant to the question :

“As a rule people know the two of you as attending to the business most of the "time?”

This answer, in the form in which it was given, and particularly when read in the context of the testimony preceding it and following it, fails to justify a finding that the husband was the wife’s agent. We may add that such authority is repeatedly denied by defendant.

Judgment reversed, and new trial ordered, with costs'to appellant to abide the event.