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Langenthal v. Oberman

155 N.Y.S. 202 Court N.Y. App. Term Decision date 1915-10-25 English

Delivered by BIJUR, J.

Contents

Majority

p. 202
(92 Misc. Rep. 162)
LANGENTHAL v. OBERMAN.
(Supreme Court, Appellate Term, First Department.
October 25, 1915.)

Headnote

1. Principal and Agent <@=>193—Contracts—Actions—Questions fob Jury.
In an action lor breach of a contract of sale, evidence held to make a question for the jury whether the goods were sold by defendant personally or as agent for a third party.
[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 721%-726;. Dec. Dig. <@=>193.]
2. Principal and Agent <@=>126—Liability of Principal on Agent’s Con-
tracts.
A contract signed, “G. Co., Seller, by O., Salesman,” bound the G. Company, if O. had authority to act for it, though its name did not appear in the body of the contract. .
[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 430-450; Dec. Dig. <@=>126.]
<®xoEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Trial Term.
Action by Samuel Langenthal against Moses Oberman. From a judgment in favor of plaintiff, entered upon the verdict of a jury, defendant appeals. Reversed, and new trial ordered.
Argued ' October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.
George D. Zahm, of New York City, for appellant.
Samuel Schack, of New York City, for respondent.

[1] This action was brought to recover damages for breach of a contract to deliver goods. One of the decisive issues volved was the question whether the goods were sold, if at all, by the defendant personally, or by him as agent for the Grafton Roller Mill Company. The learned judge below instructed the jury that the contract was with defendant as matter of law. Defendant testified repeatedly that he told plaintiff that he was acting solely as a middleman or agent for the Grafton Roller Mill Company. Two- copies of a paper were put in evidence. Had these been filled out, and been properly executed by both parties, they might have constituted a contract; but they were only partially filled out. Passing that objection, however, the defendant admitted that the words “The Grafton Roller Mill Company,” printed in the body of both papers, had been stricken out by him, and his own name written in in place thereof. The signature on the copy produced by the plaintiff has the name of the company erased, as also- the word “Salesman,” leaving the signature as that of the plaintiff personally. The copy produced by the defendant is signed, “The Grafton Roller'Mill Company, Seller, by Oberman, Salesman.”

[2] Assuming the papers to- represent a contract, the signature on defendant’s copy would, if defendant had authority to act, concerning which there seems- to be no dispute, have bound the company notwithstanding its name did not appear in the body of the contract. See' Electric Carriage, etc., Co. v. Herman, 67 Misc. Rep. 394 , 123 N. Y. Supp. 231 . Defendant testified that he had not stricken out the corporate name on plaintiff’s copy, and contended that that had been done

p. 203
by the plaintiff. From every point of view, therefore, there was a sharp issue for the jury to determine, in respect of whether the defendant or the Grafton Roller Mill Company had made whatever contract was entered into. The existence o E the issue was emphasized by correspondence introduced in evidence by the defendant between plaintiff and the Mill Company subsequent to the alleged breach oE thcr contract, in which, among other things, plaintiff writes, “October 23d, Oberman sold me for your account” goods in controversy.

As due exception was taken to the court’s charge above referred to,, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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