Klumpp v. American Hardware Manufacturing Co.

Appellate Terms of the Supreme Court of New York

Klumpp v. American Hardware Manufacturing Co.

50 Misc. 662, 99 N.Y.S. 326

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1906

StatusPublished

Cited by1 cases

This text of 50 Misc. 662 (Klumpp v. American Hardware Manufacturing Co.) 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

Klumpp v. American Hardware Manufacturing Co., 50 Misc. 662, 99 N.Y.S. 326 (N.Y. Ct. App. 1906).

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Opinion

Clinch, J.

The action was brought to recover for goods -old and delivered to one E. M. Kinsey, eastern manager [663]*663of the defendant. The defendant denied that the goods were sold to Kinsey on its behalf or for its benefit and denied his authority to purchase goods for it, claiming he was merely an agent for the purpose of securing and forwarding orders to be filled by defendant. All the goods were delivered to Kinsey or to the Photoscope Company and the bills therefor were made out against Kinsey as the debtor and not against the defendant. The plaintiffs accepted a note of the Photo-scope Company in payment of the claim in suit and in the following form: “ Rec’d Payment By Note Nov. 1st 1904. John G. Klumpp’s Sons per E. D. S.but, notwithstanding this, decided to sue defendant after the note was protested for nonpayment. Plaintiffs .contend that the defendant’s liability is established by the fact that, in giving two orders for goods, Kinsey used the defendant’s letter-head on which he is described as “ Eastern Manager ”, and which he signed “American Hardware Mfg. Co. E. M. Kinsey, Eastern Manager.”

The unauthorized use of the letter-heads does not bind the defendant. The record abundantly shows that the goods were ordered by Kinsey on his own behalf; that defendant knew nothing about the orders and never received any benefit from them. No cause of action against defendant was made out on the trial. There are exceptions in the record which were taken by defendant and which require a reversal of the judgment and order, but it is not necessary to consider them. The motion to dismiss the complaint at the close of plaintiffs’ case should have, been granted, and the motion for a new trial should have been granted.

The order must be reversed, motion granted and a new trial ordered, with costs to appellant to abide the event.

Gildebsleeve and Davis, JJ., concur.

Order reversed, motion granted and new trial ordered, with costs to appellant to abide event.

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Clinch, J.

The action was brought to recover for goods -old and delivered to one E. M. Kinsey, eastern manager [663]*663of the defendant. The defendant denied that the goods were sold to Kinsey on its behalf or for its benefit and denied his authority to purchase goods for it, claiming he was merely an agent for the purpose of securing and forwarding orders to be filled by defendant. All the goods were delivered to Kinsey or to the Photoscope Company and the bills therefor were made out against Kinsey as the debtor and not against the defendant. The plaintiffs accepted a note of the Photo-scope Company in payment of the claim in suit and in the following form: “ Rec’d Payment By Note Nov. 1st 1904. John G. Klumpp’s Sons per E. D. S.but, notwithstanding this, decided to sue defendant after the note was protested for nonpayment. Plaintiffs .contend that the defendant’s liability is established by the fact that, in giving two orders for goods, Kinsey used the defendant’s letter-head on which he is described as “ Eastern Manager ”, and which he signed “American Hardware Mfg. Co. E. M. Kinsey, Eastern Manager.”

The unauthorized use of the letter-heads does not bind the defendant. The record abundantly shows that the goods were ordered by Kinsey on his own behalf; that defendant knew nothing about the orders and never received any benefit from them. No cause of action against defendant was made out on the trial. There are exceptions in the record which were taken by defendant and which require a reversal of the judgment and order, but it is not necessary to consider them. The motion to dismiss the complaint at the close of plaintiffs’ case should have, been granted, and the motion for a new trial should have been granted.

The order must be reversed, motion granted and a new trial ordered, with costs to appellant to abide the event.

Gildebsleeve and Davis, JJ., concur.

Order reversed, motion granted and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

50 Misc. 662, 99 N.Y.S. 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klumpp-v-american-hardware-manufacturing-co-nyappterm-1906.

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