Falk v. Wolfsohn — 57 N.Y. St. Rep. 553

Majority

p. 553

Benjamin J. Falk, Resp’t, v. Henry Wolfsohn, App’lt.

(New York Common Pleas, General Term,

Filed February 28, 1894.)

Headnote

I. Evidence—Parol.

Where the writings do not contain a complete expression of the contract, parol evidence is admissable to show fully what is the agreement.

8. Contract—Partees.

Where a person has been in the habit of dealing with another as agent,

p. 554

and. disclosed, in llie particular matter, his agency, the burden is upon the latter, in order to charge him personally, to show that he dealt, in this case, otherwise than formerly or that he interposed his personal liability.

Appeal by the defendant from a judgment of the district court in the city of New York for the sixth judicial district, rendered in favor of the plaintiff on a trial had before the justice of the fifth judicial district acting in the absence of the justice of said first mentioned district court, without a jury.

The nature of the action and the material facts are slated in the opinion.

Benno Loewy for app’lt; B. Lewinson for resp’t.

This action was brought to recover for services rendered and goods furnished as indicated on the following bill;

“Mr. Henry Wolfsohn, 331 East 14th street.

May 16, 1893, Making plates for etching Miss Van

Stosch.................................... $40 00

500 prints of same................................ 40 00

Making..................................... $80 00"

The negotiations were begun orally in an interview between the defendant and the plaintiff’s manager. Some details, such as time, price, etc., were not settled, and the following letters were subsequently exchanged:

“April 26, ’93.

“Mr. Henry Wolfsohn,

Dear Sir: —We find that it will take at least two weeks to deliver any photogravures, such as you wish to order of Miss Van Stosch. The cost of making the plate will be $40, and the cost of 500 copies will be eight cents apiece, making your entire order $80. Regarding the ownership and possession of the plate, we would say that we cannot depart from our rule in this matter. The property of the plate is ours. The amount that you pay is merely for the cost of making the same. If the above points, are clear and satisfactory to you, please let us know at once and we will proceed with your order.

Very respectfully yours,

FALK.”

To this the following reply was sent:

“Henry Wolfsohn’s Musical Bureau,

Manager for Leading Artists.

New York, April 27, 1893.

B. Falk, Esq.,

Dear Sir : — Received your note. Please go on with the Van Stosch pictures. Very truly,

HENRY WOLFSOHN.”

It is obvious upon the face of these letters that they do not contain a complete expression of the contract and that parol evidence is admissible (it might be said indispensable) to show fully what the agreement was. Beach v. Raritan & Del. Bay R. R. Co., 37

p. 555

N. Y., 457 ; Arms v. Arms, 13 St. Rep., 196 ; 1 Greenleaf on Ev. [10th ed.], § 275, p. 385; § 284, p. 397.

The parties evidently took this view of it on the trial as no objection appears upon the record to the introduction of the oral evidence. Looking therefore to the entire evidence to discover whether the defendant made the contract as agent for Miss Van Stosch or on his personal account, it is found that the plaintiff’s manager admitted on cross-examination that he knew from defendant’s own statements, made to him in the course of their business dealings, that defendant was Miss Van Stosch’s agent and manager.' Furthermore it is shown by the defendant’s uncontradicted testimony that he had, as agent, habitually dealt with the plaintiff in giving orders for similar work; that he had authority from Miss Van Stosch to give this order and that he had disclosed the fact of his agency to the plaintiff. True, the plaintiff’s manager denies that this particular transaction was with defendant as agent. He testifies: “We did not make them for him in any capacity whatever, except for Henry Wolfsohn. His capacity was not concerned in the transaction.” This is nothing more than a loose conclusion of the witness, and nowhere in the record is there any evidence of anything said or done by the defendant, which would warrant an inference that he in this case dealt otherwise than as formerly or that he interposed his personal liability. This should have been shown in order to charge him with liability. Buck v. Amidon, 4 Daly, 126 ; Hall v. Lauderdale, 46 N. Y., 70 .

The judgment is not supported by the evidence, and it should therefore be reversed and a new trial ordered with costs to abide the event.

Bischoff, J., concurs.