Klumpp v. American Hardware Manufacturing Co.

Majority

p. 326

KLUMPP et al. v. AMERICAN HARDWARE MFG. CO.

(Supreme Court, Appellate Term.

June 1, 1906.)

Headnote

Principal and Agent—Sales—Liability of Principal—Sufficiency of Evidence.

Where, in an action to recover for goods sold and delivered to defendant’s alleged manager, the evidence showed that the goods were ordered by the alleged manager on his own behalf, and that defendant knew nothing about the orders for the goods, and never received any benefit therefrom, the unauthorized use by the alleged manager, in giving the orders of defendant’s letter heads, whereon such manager was described as “Eastern Manager,” and which he signed with defendant’s ñame, adding his own and the words “Eastern Manager,” did not bind defendant.

[Ed. Note.—For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 577.]

Appeal from City Court of New York, Special Term.

Action by Herman F. Klumpp and another against the American Hardware Manufacturing Company. From an order denying its motion for a new trial, defendant appeals.

Reversed.

Argued before GIEDERSEEEVE, DAVIS, and CLINCH, JJ.

p. 327

Relyea & Bunnell, for appellant.

Morris Kamber, for respondents.

The action was brought to recover for goods sold and delivered to one E. V. Kinsey, Eastern manager of the defendant. The defendant denied that the goods were sold to Kinsey on its behalf or for its benefit, and denied his authority to purchase goods for it, claiming he was merely an agent for the purpose of securing and forwarding orders to be filled by defendant. All the goods were delivered to Kinsey or to the Photoscope Company, and the bills therefor were made out against Kinsey as the debtor, and not against the defendant. The plaintiffs accepted a note of the Photoscope Company in payment of the claim in suit and in the following form:

“Rec’d payment by note Nov. 1st, 1904.

“John G. IClumpp’s Sons, per E. D. S.”

But, notwithstanding this, they decided to sue defendant after the note was protested for nonpayment. Plaintiffs contend that the defendant’s liability is established by the fact that in giving two orders for goods Kinsey used the defendant’s letter head on which he is described as “Eastern Manager,” and which he signed “American Hardware Mfg. Co., E. M. ICinsey, Eastern Manager.” The unauthorized use of the letter heads does not bind the defendant. The record abundantly shows that the goods were ordered by Kinsey on his own behalf; that defendant knew nothing about the orders, and never received any benefit from them. No cause of action against defendant was made out on the trial.

There are exceptions in the record which were taken by defendant, and which require a reversal of the judgment and order, but it is not necessary to consider them. The motion to dismiss the complaint at the close of plaintiffs’ case should have been granted, and the motion for a néw trial should have been granted.

The order must be reversed, motion granted, and a new trial ordered, with costs to appellant to abide the event. All concur.