#### John F. Bannon, Appellant, *v.*Sigmund Levy et al., Respondents.

(Supreme Court, Appellate Term,

March, 1898.)

Appeal — Affirmance on a conflict o£ evidence.

Where the issue in á case Is, whether a father, as agent for his sons, ordered certain goods, or whether he merely ordered samples from which selections could subsequently be made, "and the evidence is conflicting and depends mainly upon the testimony of one witness upon each side, the decision of the trial justice should be affirmed.

. Appeal from a judgment of the Twelfth: District Court, dismissing the complaint.

Fromme Brothers, for appellant.

Hayman *&*Rosenthal, for respondents.

Gildersleeve, J.

This action was brought to recover for goods sold and delivered; the answer is a general denial. On a former trial, the complaint was dismissed, and an. appeal was taken to this. court, where the judgment was reversed and a new trial ordered. 20 Misc. Rep. 581. Another trial was had, where the complaint was again dismissed, and the case again comes before this court"on appeal.

The only witnesses'called for plaintiff were his assignor, Gribbie, and the employee of said assignor, Demurest; while the defendants produced only one witness, Simon Levy, the father*, of the defendants. At the beginning of the trial, he is referred to, in the stenographer’s minutes, as Sigmund Levy, which is evidently a clerical error. The evidence shows that this Simon, on behalf of defendants, entered into negotiations with plaintiff’s assignor, Gribbie, in January or February, 1895; birt whether it was for the sale of goods, or merely of samples, is a disputed question in the case. It appears from the evidence that the goods were made and delivered by plaintiff’s assignor to' defendants, on or about May 25, 1895, but were forthwith returned by defendants. It aM> appears, that sometime- previous to this transaction, Simon had ordered goods, on behalf .of defendants,' from Gribbie, and had paid for them with checks signed by defendants, which appellant claims .as a fact tending to justify Gribbie in regarding Simon as *131the agent of defendants in the transactions which gave rise to' this action. Simon swears that he had no authority to order goods, but could only order samples from which defendants selected the goods. It does not appear, however, that Gribbie had any notice of this limitation in Simon’s agency. Gribbie swears that Simon, in the latter part of February, 1895, gave him an order for three numbers of inks, one gross at $60, one at $31.25, and one at $28.12, which were to be delivered after the 1st of May, 1895. These goods were, in fact, as we have said, delivered to defendants on or about May 25, 1895. Gribbie also swears that he only made goods to order. Simon himself was called to the stand by plaintiff, and examined as follows: “ Q. Did you testify on the former trial that you bought goods for them (defendants) and sold goods for them, and gave orders? Did you testify ‘ I did almost anything — sold goods and ordered goods? ’ A. Ordered goods; yes, sir. Q. "Was that true? A. I ordered goods for them. Q. That was true? A. After I had samples. Q. You ordered goods for them? A. I ordered goods after we had samples; I bought samples of different manufacturers in this line of goods; and after my boys sold some goods on those samples, then we ordered just the quantities that they had sold. Q. You never ordered any goods otherwise? A. ¡No. sir.” When called as a witness for his sons, the defendants, Simon swears that he called on Gribbie in January, 1895, and gave him an ordqr to send to defendants samples of certain lines of goods. “ Q. Just state why you merely ordered the samples? A. Because that is the only way my boys do business, as they have only a desk-room office. Q. When were those samples to be sent to your place? A. They were to be sent to our place after two weeks; they were to be sent two weeks after I was there in January. Q. You ¡say in January, about when? A. May be between the 20th and 25th.” He swears the goods were not sent in two weeks, and that in the commencement of February, 1895, Gribbie called at the defendants’ office and had an interview with Simon and one of the defendants. “ Q. This conversation took place, you say, about February? A. Yes. Q. And he (Gribbie ) came there and asked for more time (in which to deliver the samples) ? • A. Yes, sir. Q. And your son (one of the defendants) gave him more time? A. Yes, sir; oh, a couple of weeks longer.” He further swears that the goods did not come, and in the month of March, 1895, all orders were canceled, and defendants had nothing more to do with Gribbie until the goods arrived in May, when they were returned. *“*Q. In May, some cases *132came? A. Yes, sir. Q. Do you know what was inside of those cases? A. Ho, sir; they were not opened, they, were returned by the United States Express. Q. And you returned them because it was too late to use the samples, your men had already gone on the road? A. Yes, sir. Q. How, I believe you testified 'that all you ordered were samples? A Yes; nothing else. Q. That is all you were told to order? A. Yes.” Although Simon swears so positively that all orders were canceled in March, 1895, and that defendants and he had nothing more to do with Gribbie after 'that until the goods were returned on or about May 25th, it appears that on May 6, 1895, he, oni behalf of defendants, wrote as follows to Gribbie: “ If convenient, by Friday next, the 10th, send us i of a dozen each of the *samples selected by us, and also all other goods you are making,*including whisk and holder, toilet sets, etc., as we need three sets of samples, and if you make the prices right you may expect large orders very shortly. Please inclose invoice with samples, and oblige. Besp. Levy Bros.” Also on May 24, 1895, he writes Gribbie, for defendants, as follows: “ Mr. L. wishes to see you as soon as possible, yours resp. Levy Brothers, 86 Bond street, H. Y., L.” On this subject, he is examined as follows: *“*Q. The goods they testified they sold Levy Brothers' came to your place, you say, the day before you sent them back? A. Yes.- Q. You sent thembaek on May 25th, so the goods came on May 24th, didn’t they? A. Ho, I suppose the 23d.' Q. That is the time you wrote filáis letter that you wanted to see him? A. Yes. Q. He has claimed that you ordered from him inkstands and buckles, didn’t you? A. They were among the samples that I ordered. Q. This letter merely refers to' whisk and holder, and other things? A. Yes, sir. Q. And does not have anything to do with these samples? A. Ho. Q. You Would-usually use two or three samples, and a quarter of a dozen is three? A. Yes, sir. Q. You were willing to take the samples ordered, if they were de--. livered in time. A. Yes, sir; if we could get them. Q. They were ordered in January, and on May 2 3d they came? A. Yes, sir. Q. Or at least some packages came? ' A. Yes, sir. Q. (By Mr. Fromme) But you are sure you canceled all orders in March? A. Yes, sir. Q. Are you sure of the dates whemthey were canceled? A. Ho. Q. These goods were to be delivered within two weeks after you ordered them? A. Yes, sir.” The plaintiff’s witness Demorest corroborates to some extent Gribbie. He swears he was present part of the timé during the conversation between Simon and Gribbie. He says: “When I brought in the samples, Mr. *133Levy thought it was very nice; hut the other subjects of conversation I have no recollection of, except what interested me, and that was when he was ordering goods; of course, that I heard. I heard all of it; but I don’t remember it, because I had no use to remember any of the goods, except the orders.” He admits that he is still in the employ of Gribbie, and has been for six or seven years. On cross-examination, he swears: “ Q. But in the Levy case Mr. Gribbie had the customer, didn’t he? A. Yes; then he always takes the order. Q. All you did was to walk in and out? A. That is all. Q. You were out of the room for some time? A. I was not in the room when he first came. Q. You don’t know what conversation Levy had with Mr. Gribbie when you were not there? A. Ho. Q. And what these men said while you were out to complete the sample, you don’t know? A. Ho.” When again called to the stand, Simon Levy swears positively that Demorest was not present when he gave the order to Gribbie.

It will be seen, therefore, that the whole case turns upon a sharply disputed question of facts, viz.: Did Simon Levy, in February, 1895, order three gross of inkstands, to be delivered after the 1st of May, 1895, as claimed by plaintiff'; or did he, in January, 1895, order only samples, to be delivered within two weeks, which time was subsequently, in February, extended two weeks, as claimed by defendants? The letter of May 6, 1895, while apparently contradicting Simon’s testimony that he had nothing more to do with plaintiff, after canceling all orders in March, 1895, can hardly be said to have any bearing on plaintiff’s claim to recover; for plaintiff’s claim is founded upon an alleged sale, in February, T895, of three gross of inkstands, while the letter asks Gribbie to send to defendants, by the 10th of May, 1895, “£ of a dozen each of the *samples*selected by us, and also all other goods you are maldng, including whisk and holder, toilet sets, etc., as we need three sets of samples; and if you make the prices right, you may expect large orders very shortly,” etc. But be this as it may, the learned trial justice has found, upon this sharp conflict of evidence, in favor of the defendant, and we do not feel warranted in interfering with this finding. It is true that defendants’ letter of May 25th, referring to the return of an invoice of goods, does not assign, as their reason, plaintiff’s failure to deliver the samples within the two weeks, referred to, as the reason for the return, by Simon; but the letter states that the goods are returned “ because all.we wanted were samples of all your fancy goods, on which we could place orders by and by. But it seems you do- not want to *134understand it that way. Besides we find the prices on your goods more-suitable for the direct retail or drug trade, and, therefore, decline to handle your goods in our line.” It would seem from the wording of this letter that it, like the one of May 6 th, referred to some other transaction than that of the alleged sale, in February, of three gross of inkstands, as claimed by -plaintiff. Simon was not interrogated with regard to this letter, but he does swear, as. we have already seen, that the letter of 6th of May had nothing to do with the transaction that forms the basis of this action. It will be remembered, that the goods were returned unopened by the defendants. This letter of May ,25th, although attached to the record of an exhibit in the case, does not appear from the stenographer’s minutes to have been introduced in evidence. But we refer to it for what it may be worth.

After a. careful. examination of the evidence in this case, and of the objections and exceptions taken by plaintiff in the course of the trial, we come to the conclusion that the judgment, so far as assailed on this appeal, should be affirmed, with costs.

Bébkman, P. J., and Giegericii, J., concur.

Judgment affirmed, with costs.