(78 Hun, 459.)

#### HOGUET et al. v. MOMMER et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Sale—Action fob Price—Proof of Delivery.

In an action for the price of goods alleged to have been purchased by *a*broker in name of defendants, and delivered by plaintiff to defendants, there is sufficient evidence of the delivery to go to the jury where it appears that on various occasions goods purchased by the broker for defendants had been delivered to and paid for by them; that plaintiff’s truck-man took the goods in controversy to defendants’ place of business, and placed them on defendants’ elevator, as he had done on previous occasions; that the elevator man took the receipt book up with the goods, and brought it back signed, though the signature on the receipt was not legible.

Van Brunt, P. J., dissenting.

Appeal from circuit court, New York county.

Action by Robert J. Hoguet and others against Ewald Mommer and others for the price of goods sold and delivered. The complaint was dismissed, and plaintiffs appeal.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

John H. Mann, for appellants.

S. B. Stiles, for respondents.

PARKER, J.

Two causes of action are alleged in the complaint, —the first for the recovery of $207.70 for goods sold and delivered, and the second for the recovery of $1,381.50 for goods sold and delivered. At the close of plaintiffs’ case the court dismissed the complaint, and on this appeal the plaintiffs seek only to reverse so much of the judgment as relates to the second cause of action.

The plaintiffs’ contention on the trial was that their selling agent, Charles B. Boell, sold to one August Mahler, representing the de*147fendants, certain goods, which were in part delivered to Mahler for the defendants, and the residue to the defendants at their place of business. The learned trial judge reached the conclusion that the plaintiffs had not only failed to establish the agency of Mahler, but, in addition, that they had not succeeded in proving that any portion of the goods was delivered to the defendants. We agree with him in so far as he determined that the plaintiffs had failed to furnish any such evidence of the agency as would entitle them to recover on proof merely that they had sold and delivered goods to Mahler. But as to a portion of the goods we think there was such proof of delivery as to entitle the plaintiffs, in the absence of a denial of their receipt by the defendants, to go to the jury on that question. Mahler was described by plaintiffs’ selling agent as a broker who, finding a purchaser for certain goods, would buy them in the name of the customer, to whom the goods would be delivered by the seller, accompanied by a bill. There was evidence that Mahler’s brother was a member of defendants’ firm, and that Mahler had, or pretended to have, an office at their place of business. On several prior occasions he ordered of plaintiffs’ selling agent small quantities of goods for the defendants, which were delivered, not to him, but to them, and in due course paid for them by their check. Plaintiffs’ selling agent knew that Mahler was not in the employ of the defendants, and his general course of dealing with him makes it apparent that he well understood the necessity of a delivery to the defendants, in order that their liability to respond should become assured. In the absence of the selling agent, however, Mahler succeeded in obtaining a delivery to himself of some portion of the goods which were the subject of the second clause of action, and as to them it was rightly held that there was no basis for a recovery. But we think the court assumed that all of these goods were delivered to Mahler, and overlooked the fact that there was evidence tending to show that some portions of them were actually delivered to the defendants. April 29,1891, the plaintiffs’ agent claims to have delivered to the defendants some goods in the same manner as on previous occasions, which had resulted in checks from the defendants for the value of the goods delivered, as per bill accompanying them. Touching the delivery, James Campbell, plaintiffs’ truckman, who had delivered other goods to the defendants for plaintiffs, purchased under similar circumstances, testified:

> “A. In the first place I went to Boell’s. I called up the hatch to the porter if he had anything to go out. He said, ‘Yes; I have a case to deliver to E. Mommer & Co.’ ‘All right; send it down.’ It comes down in the elevator, and I take it down. I drive around to Mommer’s place. Sing up the hatch, ‘E. Mommer & Co.’ The elevator comes down with a man on it Takes the case. I helped put it on the elevator. Takes the case and book upstairs. Leaves the case there, and comes down with the book. I drive away. I do not know Augustus Mahler. Q. Do you know the elevator man down there? A. Well, now, I couldn’t tell. Sometimes there is one man on an elevator, and the next time you go there is another man,—in all buildings, as a general thing. Elevator man may be off; may be called away. You sing out, and somebody who is in the habit of running it will come down, and take up your goods. Q. You have already testified this morning to the delivery of some *148goods on April 29th, and I ask you whether those goods of April 3d were delivered by you in the same way as such goods testified about this morning. A. Yes, sir. I have never had a receipt signed at the door in Mommer’s place. The book has always went up. Q. Always went up, and came back again signed? A. Yes, sir. Q. Have you frequently delivered goods to Mommsr? A. Quite often. Q. Know the place well? A. Yes, sir; know the place well.”

Plaintiffs put said receipt in evidence as Exhibit N, as follows, the italics signifying the writing on a printed form:

> “New York, *April 3rd, 1891.*

> “Received from *Oh. P. Boell,*in good order, marked *Mess. E. Mommer & Oo., SS Grand*Slreel, the following packages: *One (1) Case No.*Delivered by *Campbell.*Signed *X. ”*

The “signature,” so called, which was subscribed to the receipt on the book while it was upstairs, was not intelligible, and neither counsel was able to make it out; but as the truckman had concededly made deliveries for the plaintiffs before, to these defendants, in the same way, we think that, in the absence of evidence on their part that the goods in controversy did not come into their possession, the plaintiffs were at least entitled to have the jury say whether they were in fact delivered. The judgment should be reversed, and new trial ordered, with costs to the appellants, to abide the event.

FOLLETT, J., concurs. VAN BRUNT, P. J., dissents.