Pollacek v. Scholl

Jenks, J.: This action is brought for goods sold and delivered. The answer is a general denial and by way of a “ separate defense and as a counterclaim ” that the. goods were sold to the defendant by one Weigert with the representation 'that he was the owner thereof, and that defendant tendered in payment- a certain unpaid promissory note of the said "Weigert for forty-three dollars, of which the defendant was then the bona fide holder for value, together with the balance of said purchase price in cash. The plaintiff and defendant were entire strangers. The undisputed evidence shows that Weigert called at the defendant’s place, naming no principal, but presenting himself as a dealer in leaf tobacco and handing out a business card reading “ Chas. Weigert, Dealer in Leaf Tobacco, 336 Central Ave., Brooklyn, N. Y.” The defendant ordered certain tobacco, which was thereafter delivered to the defendant by Weigert. The plaintiff thereupon asked Weigert for a bill that he might make payment. Weigert said that lie had none—that he had forgotten it. At the instance of defendant Weigert made out a bill and receipted it. The bill read as follows: [320] “Brooklyn, Aug. 18, 1899. “F. P. Scholl bought of Chas. Weigert, 336 Central Ave., “ Brooklyn, “ 203b of Sumatra @ 2.90 •— 56.00. ' . “ Received, CHAS. WEIGERT.”' The defendant then tendered to Weigert the note and the balance in cash, which was refused, and a. demand was made for the return of the tobacco, which demand was refused. Upon the following day plaintiff mailed a bill for the tobacco, which was remailed by the defendant with the writing: “I never bought any tobacco from you therefore return this bill.” The plaintiff then called upon the defendant and demanded the goods or the price-thereof, whereupon the defendant answered that he had not bought the tobacco from the plaintiff and did not recognize him in the transaction. It then appeared, for the first time, that Weigert was an employee of the plaintiff. I am of opinion that this note should be set off against the pun-chase price. (Rabone v. Williams, 7 T. R. 356, note a; Nichols v. Martin, 35 Hun, 168, 170 ; Wright v. Cabot, 89 N. Y. 570, 574; Bannerman v. Quackenbush, 11 Daly, 529.) In Rabone v. Williams (supra) Lord Mansfield says : “ Where a factor dealing for a principal, but concealing that principal, delivers goods in Lis own name, the person contracting with him has a right to consider him,to all intents and . purposes, as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of the goods,'yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal.” And the rule applies though, as in this case, the defendant, when he agreed to pay cash, intended to.make" payment or part payment with the note. (Bannerman v. Quackenbush, supra, citing authorities.) The defendant had no actual knowledge of Weigert’s agency, and no circumstances appear that would indicate to a reasonable man that agency existed or that would induce such a man to make inquiry. Therefore, this case is not within the exception to the general rule noted in Argersinger v. Macnaughton (114 N. Y. 535, 540). The judgment must be modified. The plaintiff is entitled to the purchase price of the goods, viz., fifty-six dollars, less the note, with [321] interest- thereon for two years and six months, namely, forty-nine •dollars and sixty-eight cents, leaving six dollars and thirty-two cents, amounting, with interest, to six dollars and forty-five cents. As tender was made before suit, the plaintiff is not entitled to costs {Code Civ. Proc. § 733), but the defendant is entitled to five dollars costs of an adjournment-, as ordered by the court below, to abide the event, leaving the amount of the plaintiff’s judgment one dollar and forty-five cents. , The judgment as reduced should be affirmed. All concurred. Judgment of the -Municipal Court modified, without costs of this appeal to either party, in accordance with opinion of Jenks, J.