Rubin v. Askins

Appellate Terms of the Supreme Court of New York

Rubin v. Askins

123 Misc. 155, 204 N.Y.S. 827, 1924 N.Y. Misc. LEXIS 884

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 29, 1924

StatusPublished

This text of 123 Misc. 155 (Rubin v. Askins) 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

Rubin v. Askins, 123 Misc. 155, 204 N.Y.S. 827, 1924 N.Y. Misc. LEXIS 884 (N.Y. Ct. App. 1924).

Pincite

Opinion

Per Curiam.

Plaintiff sued to recover the agreed price of certain merchandise consisting of coats. Defendant claimed that the merchandise delivered was not in accordance with sample, that certain defects were discovered after acceptance by defendant. Ten coats were returned by defendant and accepted by plaintiff. [156]*156Defendant resisted payment for the balance upon a claim that plaintiff’s salesman had told him that he need not return these coats, but if by the end of the season, he had not been able to dispose of them, plaintiff would accept their return. This alleged agreement on the part of the salesman was denied. The authority of the salesman to make such an agreement, assuming that it was made, was not shown. There was no proof that plaintiff knew of this alleged agreement or that he had in any way ratified it. The right to make such an agreement is not incidental to a salesman’s selling authority. A salesman has no implied power beyond that which is usual and necessary to bring about the sale. The court erred in charging the jury that the salesman “ being the only person with whom the transaction was made, any terms agreed upon between the two were binding * * *. That there is no question of the authority of the salesman. Any agreement made between him and the defendant is binding.”

The judgment entered on the verdict of the jury must, therefore, be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Guy, Wagner and Wasservogel, JJ.

Judgment reversed.

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Per Curiam.

Plaintiff sued to recover the agreed price of certain merchandise consisting of coats. Defendant claimed that the merchandise delivered was not in accordance with sample, that certain defects were discovered after acceptance by defendant. Ten coats were returned by defendant and accepted by plaintiff. [156]*156Defendant resisted payment for the balance upon a claim that plaintiff’s salesman had told him that he need not return these coats, but if by the end of the season, he had not been able to dispose of them, plaintiff would accept their return. This alleged agreement on the part of the salesman was denied. The authority of the salesman to make such an agreement, assuming that it was made, was not shown. There was no proof that plaintiff knew of this alleged agreement or that he had in any way ratified it. The right to make such an agreement is not incidental to a salesman’s selling authority. A salesman has no implied power beyond that which is usual and necessary to bring about the sale. The court erred in charging the jury that the salesman “ being the only person with whom the transaction was made, any terms agreed upon between the two were binding * * *. That there is no question of the authority of the salesman. Any agreement made between him and the defendant is binding.”

The judgment entered on the verdict of the jury must, therefore, be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Guy, Wagner and Wasservogel, JJ.

Judgment reversed.

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Bluebook (online)

123 Misc. 155, 204 N.Y.S. 827, 1924 N.Y. Misc. LEXIS 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-askins-nyappterm-1924.