Lamb v. Hirschberg — 48 N.Y. St. Rep. 658

Majority

p. 658

Hugh Lamb, Resp’t, v. Augusta Hirschberg et al., App’lts.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

1. Pleading—Answer—Denial of indebtedness—When insufficient to RAISE AN ISSUE.

In an action to recover the purchase price of goods sold and delivered, the answer denied that defendants “are indebted in any sum whatever upon the alleged cause of action,” and did not otherwise deny the allegations of sa!e and delivery at an agreed price. Held, that the denial was of

p. 659

a legal conclusion merely and. insufficient to raise an issue, and the sale and delivery and promise to pay were admitted thereby.

2. Payment—Evidence of agent’s authority to receive—Withdrawal FROM JURY.

In such action, the defense being payment, and it being conceded that defendants had paid the amount claimed to one B., the broker who had negotiated the sale, and who at the time claimed to have authority to collect, which plaintiff denied, B. was called as a witness and testified that defendants had paid him, that he had not accounted to plaintiff for the same otherwise than by charging himself with the amount, that he had ■ never received specific authority to collect the sum from defendants, but had received express paroi direction from plaintiff, to collect generally, and had been in the habit of so doing, -and except in- the instance of defendants’ indebtedness, plaintiff had always ratified the collections. The court directed a verdict for plaintiff. Held, error to withdraw the question of B.'s authority to receive payme.it, as plaintiff’s agent, from the jury.

Appeal from a judgment for plaintiff, entered upon a verdict rendered by direction of the trial court.

Action to recover the purchase money for goods sold and delivered, the defense being payment.

Smith & White, for resp’t; Sampter & Fleischman, for app’lts.

The answer denied that defendants “ are indebted in any sum whatever upon the alleged cause of action set forth in the complaint,” and did not otherwise deny the allegations of sale and delivery of the merchandise at an agreed price stated. The denial was, therefore, of a legal conclusion merely, insufficient to raise an issue, Drake v. Cockroft, 4 E. D. Smith, 84; Emery v. Baltz et al., 94 N. Y., 409 , 411, and the sale and delivery to defendants, as well as their promise to pay, were admitted. Code Civ. Pro., § 522.

The defense remaining was payment, and it was conceded on the trial that defendants had paid the amount of their indebtedness to one Beaumont, the broker who had negotiated the sale, and who at the time of payment claimed to have authority to collect. This authority plaintiff disputed, and his testimony taken under a commission was to .the effect that he had never authorized Beaumont to collect the money. Beaumont, called as a witness for defendants, admitted that defendants had paid him, that he had not accounted to plaintiff for such payment otherwise than by charging himself with the amount, and that he had never received specific directions or authority to collect the sum due-plaintiff from defendants.

He testified further that he had received express paroi directions from plaintiff to collect generally, that he had been in the habit of collecting the sums owing for merchandise sold by him on plaintiff’s behalf, and that, except in the instance of defendants’ indebtedness, plaintiff had always ratified and approved the collections. On motion of plaintiff’s counsel, the court directed a verdict for plaintiff under objection and exception for defendants.

It was error to withdraw the question of Beaumont’s authority to receive payment, as ‘plaintiff’s agent, from the jury. Plaintiff’s denial of having given such authority was not conclusive, because that of a party in interest, Elwood v. Western

p. 660

U. Tel. Co., 45 N. Y., 549 ; Gildersleeve v. Landon, 78 id., 609 ; Honegger v. Wettstein, 94 id., 252, and evidence of express authority was not indispensable to sustain the defense. It was sufficient if Beaumont’s authority to collect appeared inferentially from a course of dealing between him and his alleged principal. Bank of Auburn v. Putnam, 1 Abb. Ct. App. Dec., 80 ; Wood v. A. & R. R. R. Co., 8 N. Y., 160 ; Hammond v. Varian, 54 id., 398 : Olcott v. Tioga R. R. Co., 27 id., 546; Marine Bank v. Clements, 31 id., 33.

The judgment appealed from must be reversed and a new trial ordered, with costs to appellants, abide the event.

Bookstaver and Pryor, JJ., concur.