Turner Press, Inc. v. Gould

76 A.D.2d 906, 429 N.Y.S.2d 239, 1980 N.Y. App. Div. LEXIS 12000

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1980
• Status: Published

Opinion

In this action to recover moneys allegedly due and owing for printed materials sold and delivered, defendant appeals from a judgment of the County Court, Westchester County, dated February 22, 1979, which granted plaintiff judgment, after a nonjury trial, in the principal sum of $3,756.14. Judgment affirmed, without costs or disbursements. On this record, we agree with Trial Term’s conclusion that defendant failed to establish that he acted as agent for a disclosed principal, Grunmar Industries. The trial court’s finding that defendant acted as a principal is also supported by the strong inference to be drawn in favor of the plaintiffs evidence as a result of defendant’s failure to take the stand to contradict plaintiffs case (see Noce v Kaufman, 2 NY2d 347). Plaintiffs dealings were exclusively with the defendant. He submitted purchase orders to plaintiff which dispatched corresponding bills to him and received partial payment from him. Upon defendant’s failure to make full payment on the order, plaintiff clearly was warranted in seeking the balance from him. Any language in the purchase order contract to the effect that defendant would not be liable to plaintiff in his individual capacity for a client’s default is diluted by further contractual language implying precisely the opposite. Defendant drafted the contract, which is internally inconsistent in material respects. In light of the ambiguity of the contract, Trial Term was warranted in invoking the rule of strict construction and interpreting the document in a light most favorable to plaintiff, the non-drafting party. Hopkins, J. P., Damiani, Titone and Lazer, JJ., concur.