De Hierapolis v. Webber

This action was brought to recover the sum of $99.75, alleged to be a balance due the plaintiff under the terms of a contract to furnish brass railings for buildings erected by the defendant. The facts, so far as they are uncontradicted, are substantially as follows: In August, 1898, one James Ó. Levy made a contract with the defendant, under which a quantity of railings were put upon buildings then in course of erection by the defendant. On November 12, 1898, the defendant paid Levy $50, to apply in payment for the railings so furnished. On November 19, 1898, the defendant, who up to that time supposed that Levy had contracted on his individual account, was informed that Levy and the plaintiff were partners doing business under the name of the Metropolitan Brass-Foundry Company. The defendant on that day made his check, payable to the order of the Metropolitan Brass-Foundry Company, for the sum of $350, and delivered it to Levy, to apply in payment of the contract price of the railings. This check, it appears, was subsequently indorsed and cashed by Levy, and at least the sum of $300 thereof paid to plaintiff. Subsequently the defendant paid to the plaintiff an amount which, including the $50 payment made to Levy on November 12, and the $350 check of November 19, 1898, and a small discount allowed by the plaintiff, equaled the amount due under the contract. The plaintiff, claiming that he never received the payment of November 12, 1898, and only $300 of the check of November 19, 1898, brought this action. There was conflict of testimony as to whether Levy was in partnership with plaintiff, and as to whether, if not a partner, he was authorized to represent the plaintiff in matters pertaining to the Metropolitan Brass-Foundry Company, and to receive payments for and on behalf of the plaintiff; and upon these questions the trial judge found in favor of the defendant. It does not appear that such finding was against the weight of evidence, or that injustice has been done. The judgment must therefore be affirmed. Judgment affirmed, with costs to respondent. All concur.