Opinion
April 22, 1927.
Appeal from Supreme Court of New York County.
Harold M. Goldblatt of counsel [ Frederick E. Goldsmith with him on the brief; Goldsmith, Goldblatt Hanower, attorneys], for the appellant.
Henry J. Farrell of counsel [ Paul N. Turner, attorney], for the respondents.
At the Trial Term a verdict was directed in favor of the defendants. Issues of fact were presented, however, which required submission to a jury. These arose in the following manner:
Plaintiff sought to recover a balance due pursuant to an oral hiring, whereby he was to act as exclusive business manager of the defendants, a team of theatrical performers. Plaintiff testified to the making of the agreement with the defendant Quinault. Plaintiff's testimony was corroborated by that of his secretary. Defendant Quinault did not testify, but a letter in evidence written by him shows his position to be that the defendant admitted owing ten per cent commission but claimed this to be due to Howell Baud of Paris, who had made the original managerial contract in Paris with the defendants, and who at that time were represented in America by the plaintiff. Defendants also put in evidence a letter, written over the signature of the plaintiff, which acknowledged the receipt of moneys by the plaintiff on behalf of Howell Baud under the contract sued on. Plaintiff's explanation of this letter was that it was due to an error of his secretary. Plaintiff was obviously an interested witness. This conflict of evidence, aside from other inferences bearing upon the question, presented an issue of fact as to whether the defendant Quinault did make an exclusive managerial contract with the plaintiff to represent the defendants or whether there was merely a renewal of the existing contract with Howell Baud. This issue could only be resolved at least in the first instance by a finding of the jury.
There was also a second issue of fact, namely, whether the defendant Quinault had authority from the defendant Rowe to bind the latter under the same contract, if the jury should find this contract to have been made as testified to by the plaintiff. It appears upon this record that the defendant Rowe did not have any communication with the plaintiff concerning the contract in suit, but that the defendant Quinault alone communicated with the plaintiff concerning the work of both the defendants. From this course of dealing and the admission of the defendant Rowe that the amount sued for was due either to this plaintiff or to Howell Baud of Paris, there was sufficient to authorize a finding of the jury that the defendant Rowe had authorized the defendant Quinault to represent both defendants in his dealings with the plaintiff. This was so even in the absence of an actual partnership between the defendants, which, without further evidence, would have authorized one to bind the other in reference to partnership business. Counsel for the defendants stressed the lack of proof of an actual partnership and thus inadvertently withdrew this other evidence from the attention of the learned trial court.
Since there were thus presented two issues of fact for the jury, a verdict should not have been directed, and the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
DOWLING, P.J., McAVOY, MARTIN and O'MALLEY, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.