Adolph Prince Co. v. Koenig

147 N.Y.S. 21

Opinions

BIJUR, J.

Plaintiff sues defendant for bottled liquors sold and delivered. It proved a delivery but no sale. As matter of fact, the sale was made to the defendant by one Lopacki. On plaintiff’s case, the only proof which connected the plaintiff with the sale was the testimony-of one of plaintiff’s employés:

“The salesman, Lopacki, brought the order in to us, and we shipped the goods.”

Unless the words "the salesman” be construed to mean a salesman at that time in the employ of the plaintiff, there is nothing to connect plaintiff with the sale, and I do not think that it should be so construed. The complaint, therefore, should have been dismissed at the close of the plaintiff’s case.

Defendant, on his own case, showed that he had dealt with Lopacki as principal for four years, and had continually bought from him goods marked with plaintiff’s labels. He had ordered the particular goods in suit from Lopacki, and had paid him for them before he ever received any intimation that plaintiff made any claim either to the goods or to their proceeds. If, therefore, we might assume that Lopacki was in plaintiff’s employ during the four years, and this course of dealing was permitted by plaintiff, then Lopacki was held out as having authority to collect, and defendant’s payment was a discharge of the debt to the principal. But no such assumption is justified. Defendant bought these goods from Lopacki as principal as he had been doing for four years, and the mere fact that the - goods bore plaintiff’s label or happened to be delivered by one of plaintiff’s wagons does not change either the character of the transaction or the relations of the parties.

The case of McGoldrick v. Willits, 52 N. Y. 612, has no application; the decision there having turned on the presence of a number of suspicious circumstances upon which the court held that the defendant was bound at least to suspect, if not actually to assume, that the transaction was conducted on behalf of the plaintiff.

The judgment should be affirmed.

PAGE, J., concurs.