Fleischer v. Wein

Prentice, C. J. The plaintiff seeks recovery for goods sold and delivered by him, upon order, to a store in Greenwich. Abraham Wein, the defendant’s father, was the proprietor of this store. The defendant, during the whole period covered by the plaintiff's dealings with it, had no other connection with it, or interest in the business there carried on, than as his father’s agent in its management. He cannot, therefore, be held liable for the plaintiff’s account, a rightful charge against his father, unless the goods whose sale and delivery furnish the basis of it, were sold and delivered upon the defendant’s credit. The court has found that the plaintiff, in his transactions with the store, extended credit to its owner, the defendant’s principal, and not to the defendant. This is a finding of fact. If it is to stand, the judgment exonerating the defendant from liability necessarily follows. It must stand unless as an ultimate fact it is *375 inconsistent with the subordinate evidential facts which are found, or its deduction from those subordinate facts was one which could not reasonably be made. We are unable to discover such inconsistency or unreasonableness, especially in view of the facts that the only credit appearing upon the plaintiff’s account was for a payment made by Abraham, and that the plaintiff sought out Abraham to make personal demand of him for payment of the balance due. In the face of these facts, strongly suggestive of the plaintiff’s knowledge of Abraham’s proprietorship and of a giving of credit to him, a trier might reasonably regard the other facts upon which the plaintiff relies, as furnishing less convincing indications as to the person, whether the principal or the agent, upon whose credit the sales were made. The original entry in the plaintiff’s books is as readily explainable upon the theory that it was used to indicate the place of business, as of the place of residence of its proprietor, and the use of the order slips was an incident of the transactions with the plaintiff entirely consistent with knowledge of the true proprietorship. The absence of a sign possesses only such negative significance as arises from an absence of a representation of ownership by that method, and the directory entries, speaking the truth when made, possess no importance touching the plaintiff’s knowledge, since it does not appear that they ever came to the plaintiff’s notice. There is no error. In this opinion Wheeler, Beach and Shumway, Js., concurred.