Tebbetts v. Levy

11 N.Y.S. 684, 34 N.Y. St. Rep. 58, 1890 N.Y. Misc. LEXIS 2300

Opinion

Per Curiam.

On appeal from this judgment dismissing their complaint, the plaintiffs are entitled to have all their evidence taken as true, and to be given the benefit of the most favorable inferences deducible therefrom. Weil v. Railroad Co., 119 N. Y. 152, 23 N. E. Rep. 487. Although the statute requires the guaranty to be in writing, it was not necessary that Mrs. Levy’s authority to execute it, as defendant’s agent, should also be in writing. Parol authority is sufficient, and it may be proved by oral testimony. Worrall v. Munn, 5 N. Y. 229; Dykers v. Townsend, 24 N. Y 57; Bank v. Ballou, 49 N. Y. 155. The defendant told the plaintiffs that his wife would have charge of his business; that they could do business with her as they had with him; and that they could let her have whatever she wanted, and it would be all right. On the defendant’s return from Europe, plaintiffs demanded payment from him, and he said if his wife would tell him that she had guarantied the purchase he would pay the bill. He asked for, and was allowed to take, the guaranty to show to his wife, presumably to ask her whether she did make it, and in a few days returned it with a letter, neither denying nor admitting his liability. The defendant offered to pay half of the claim before suit brought. Taking this evidence as true, as we must on this appeal, it is clear that the jury would have been warranted in drawing the inference that Mrs. Levy had authority from the defendant to sign his name to the guaranty. It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish an agency in any given case; but it may be said, in general terms, that whatever evidence has the tendency to prove the agency is admissible, even though not full and satisfactory, as it is the province of the jury to pass upon it. Bickford v. Menier, 36 Hun, 446; Manufacturing Co. v. Burns, 15 N. Y. St. Rep. 570; Leslie v. Insurance Co., 63 N. Y. 27; and see Railroad Co. v. Hcnlein, 52 Ala. 606; Morrison v. Whiteside, 17 Md. 452. Apart from the question of original authority, there' was sufficient evidence of ratification to go to the jury. 1 Lawson, Rights, Rem. & Pr. § 41; Harrod v. McDaniels, 126 Mass. 415; Cairnes v. Bleecker, 12 Johns. 300; Jervis v. Hoyt, 2 Hun, 637; Johnson v. Jones, 4 Barb. 369; Stilwell v. Insurance Co., 72 N. Y. 392. The case ought to have gone to the jury. It was error to dismiss the complaint, and the judgment entered on such dismissal must be reversed, and a new trial ordered, with costs to the appellant to abide the event.