Comptograph Co. v. Schmalholz

Appellate Terms of the Supreme Court of New York

Comptograph Co. v. Schmalholz

150 N.Y.S. 98

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 4, 1914

StatusPublished

This text of 150 N.Y.S. 98 (Comptograph Co. v. Schmalholz) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Comptograph Co. v. Schmalholz, 150 N.Y.S. 98 (N.Y. Ct. App. 1914).

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Opinion

COHALAN, J.

Plaintiff sues to recover the purchase price of a second hand adding machine. The alleged sale, evidenced by a written agreement, was made through one Seymour, a bookkeeper of the defendant. This employe had been discharged by the defendant, and testified on the trial of the action that the machine, concededly on trial in the defendant’s place of business, was bought by the defendant. The defendant claims that the employé had no express or apparent authority to bind him to such a contract.

The weight of the evidence seems to sustain the defendant’s contention. It shows that the business was not placed in Seymour’s charge, but that one Smith was the business manager thereof; that the defendant was in his place of business every day, and was there at the precise time when the agreement was signed by Seymour. Moreover, the plaintiff was informed by Seymour that the express consent of the defendant would have been necessary to purchase the machine. Under these circumstances the plaintiff dealt with the bookkeeper at its peril. People v. Brooklyn Cooperage Co., 187 N. Y. 142, 79 N. E. 866; Edwards v. Dooley, 120 N. Y. 540, 24 N. E. 827. It is significant, too, that the written agreement was never shown to the defendant, and that it was not found until after the discharge of Seymour, when a prompt demand was made upon the plaintiff to remove the machine.

Judgment reversed, and new trial ordered; costs to appellant to abide the event. All concur.

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COHALAN, J.

Plaintiff sues to recover the purchase price of a second hand adding machine. The alleged sale, evidenced by a written agreement, was made through one Seymour, a bookkeeper of the defendant. This employe had been discharged by the defendant, and testified on the trial of the action that the machine, concededly on trial in the defendant’s place of business, was bought by the defendant. The defendant claims that the employé had no express or apparent authority to bind him to such a contract.

The weight of the evidence seems to sustain the defendant’s contention. It shows that the business was not placed in Seymour’s charge, but that one Smith was the business manager thereof; that the defendant was in his place of business every day, and was there at the precise time when the agreement was signed by Seymour. Moreover, the plaintiff was informed by Seymour that the express consent of the defendant would have been necessary to purchase the machine. Under these circumstances the plaintiff dealt with the bookkeeper at its peril. People v. Brooklyn Cooperage Co., 187 N. Y. 142, 79 N. E. 866; Edwards v. Dooley, 120 N. Y. 540, 24 N. E. 827. It is significant, too, that the written agreement was never shown to the defendant, and that it was not found until after the discharge of Seymour, when a prompt demand was made upon the plaintiff to remove the machine.

Judgment reversed, and new trial ordered; costs to appellant to abide the event. All concur.

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150 N.Y.S. 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comptograph-co-v-schmalholz-nyappterm-1914.

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