Tarpey v. Bernheimer

This action was brought to recover for inserting an advertisement of the defendants’ business in plaintiff's paper. There was no evidence that the plaintiff had any dealings directly with defendants. He claims to have received the order from one John Franz, whom he claimed was acting as -agent for the dc: fendants. The testimony shows conclusively that Franz was agent for the defendants only for the purpose of selling beer, collecting bills and representing the defendants before the board of excise, and in our judgment this was not sufficient to warrant the court below in finding that Franz was the agent of the defendants for the purpose of contracting bills for advertising their business, especially in view of the fact that Mr. Bernheimer, the survivor of the firm, testified that Franz had no such authority and had never been authorized by him to contract bills for him or his firm. The plaintiff also attempted to show that the papers containing the advertisement were sent to the brewery owned by the defendants, but Mr. Bernheimer denies that he ever received such papers or had his attention called to them, or ever received a bill for the advertising until after the action was commenced.

Under this state of facts, we think the judgment should be reversed, with costs.

Bookstaver and Bischoff, JJ., concur.