Downs v. Jalowack

66 Barb. 458, 1873 N.Y. App. Div. LEXIS 182

• Court: New York Supreme Court
• Decided: January 7, 1873
• Status: Published

Opinion

By the Court,

Mullin, P. J.

If this case had been allowed to go to the jury, and they had found the facts to be as sworn to by the defendant, a sale to him by Braman would have been conclusively established.

It is not shown that the defendant knew that Braman was acting as agent for the plaintiffs. On the contrary, Braman had agreed to procure for him a Stewart stove, in place of the one taken down. The negotiation for the sale was carried on by Braman, and a part of the arrangement was that the defendant should pay for it in clothing. If Downs stood by and heard this negotiation, and asserted no title to the stove, nor gave any notice to the defendant that he was the person with whom the trade must be made, he and his firm are estopped from asserting title to the stove.

[Fourth Department, General Term, at Buffalo, January 7, 1873.

It is equally clear that if the jury should believe Downs the plaintiffs were not estopped, and they were entitled to recover.

The case was clearly one for the jury, and it was error to refuse to submit it.

It will be for the jury to say what weight is to be given to the fact that the sale of the stove was made by Bra-man in the plaintiffs’ store.

I have looked into the case that was before us on the former appeal, and find that there was no evidence given on the part of the defendant tending to establish an estoppel against the plaintiffs.

As the case was then presented, Braman was the plaintiff’s agent to sell a stove, and he did sell it, in their store, in violation of his duty as agent, as his own property. The defendant was bound to ascertain the extent of his authority; at least he was bound to inquire whether the plaintiffs had parted with their ownership.

I have not examined the exceptions to the admission of evidence. The failure to submit the case to the jury is fatal, and the judgment must be reversed, and a new trial ordered, costs to abide the event.

¡New trial granted.

Mullin, Talcott and E. D. Smith, Justices.]