Wilson v. Wyandance Springs Improvement Co.

4 Misc. 605

• Court: New York Court of Common Pleas
• Decided: July 1, 1893
• Status: Published

Opinion

Bischoee, J.

Attentive consideration of the evidence renders it irrefragably apparent that the only defense was an attempt to shift responsibility for plaintiff’s demand from a solvent to an insolvent corporation. Express authority to Bosenfeld to purchase merchandise upon defendant’s credit was not indispensable to plaintiff’s right to recover. It was sufficient that there had been a course of dealing between plaintiff and defendant, from which Eosenfeld’s authority could be inferred. Lamb v. Hirschberg, 1 Misc. Rep. 108. Such a course of dealing appeared in evidence from the testimony of plaintiff’s witnesses, which' was to the effect that the assumed agent had on former occasions purchased merchandise of like kind on defendant’s credit, and that these purchases were in each instance ratified by defendant, by acknowledgment of its indebtedness and payment thereof.

The evidence as to such a course of dealing may be slight, if considered without reference to other facts which appear, but its effect is intensified when it is kept in mind that defendant and another corporation of nearly the same name had the same officers and occupied the same office, to which the bills for merchandise were directed to be sent, and that this office bore the sign only of the defendant.

The denials of defendant’s president and .of Rosenfeld, the assumed agent, that the latter was the agent of the defendant, and that the assertions that he was the agent of the Wyandance Mineral Water Company, were not conclusive, because they were those of persons in interest. See cases cited in Lamb v. Hirschberg, 1 Misc. Rep. 108.

The judgment should be affirmed, with costs.

Gtegebioh, J., concurs.

Judgment affirmed, with costs.