Mirkus v. G. S. Skirts Co

Full title: MIRKUS v. G. S. SKIRTS CO

Court: Appellate Term of the Supreme Court of New York, First Department. Argued December term, 1920

Date published: Jan 20, 1921

185 N.Y.S.2d 867 (N.Y. App. Term 1921)

Opinion

January 20, 1921.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Joseph H. Mirkus against the G. S. Skirl Company. Judgment for plaintiff, after a trial before the court without a jury, and defendant appeals. Reversed, and new trial ordered.

Abraham H. Sarasohn, of New York City, for appellant.

Horowitz Hurwitz of New York City (Charles Horowitz York City, of counsel), for respondent.

Before GUY, LEHMAN, and WAGNER, JJ.

LEHMAN, J.

The defendant appeals from a judgment in favor of the plaintiff for the sum of $345, damages for failure of the defendant to pay the agreed price of goods alleged to have been sold and delivered to it. The answer admitted that "the plaintiff sold and delivered to the defendant, at its special instance and request, certain goods, wares, and merchandise-, of the agreed price and reasonable value of $345, which the defendant promised and agreed to pay," but denied all the other allegations of the complaint, it further sets forth that the goods were sold under a warranty that they were merchantable mid reasonably fit for the purpose of the manufacture of garments. and that the goods delivered did not comply with this warranty, and after a reasonable time the plaintiff was duly notified of the breach of warranty, and the merchandise was duly offered to be returned to the plaintiff,

In order to make out a prima facie cause of action, the plaintiff was required to prove the terms of the contract of sale, and that he delivered to the defendant goods in accordance with that contract. At the trial the plaintiff showed that the purchase was made in defendant's behalf by a commission merchant. Thereafter the defendant tried TO show that it had authorized the commission merchant to buy these goods only on certain terms and conditions. The trial justice excluded this testimony, on the ground that the plaintiff could not be bound by secret limitations on the authority of defendant's agent. Under the present pleadings it seems to me that the trial justice's ruling was correct. The defendant might ordinarily be permitted to show that the commission merchant had DO authority to make the contract of sale under which the plaintiff claims, but in the present case the-defendant admits that that contract was made, but claims that it included a warranty. Obviously, if the contract was made, the commission merchant must have been the defendant's agent, and even, though the defendant's agent may have been directed to make the sale only under certain conditions, such directions, not communicated to the plaintiff, would not bind him to any terms which he did not agree should become part of the contract.

The defendant further claims that the plaintiff has failed to prove that the goods actually delivered complied with the agreement as made. It is unnecessary now to consider this point, because the defendant never moved to dismiss the complaint on this or any other ground. In fact, the record does not show that the plaintiff formally rested before the defendant began to call its witnesses.

At the close of the case both sides rested, and the only motion that was made was by the plaintiff's counsel, who stated, "I move for judgment on the ground that they failed to prove notice," and this motion was granted. A reading-of the record shows that the notice which the plaintiff claims defendant failed to prove was the notice sent to the plaintiff that the goods delivered were defective. The defendant endeavored to prove that notice in writing was sent on or about March 3, 1920, but this is evidence was excluded on the ground that the defendant had failed to give to the plaintiff notice, to produce the original letter sent. Ordinarily this objection would be valid, but in the present case the defendant had served a bill of particulars, in which it sat forth this letter in full, and stated that it had been mailed to the plaintiff on March 3, 1920. The bill of particulars constituted an amplification, of the pleading, and it gave notice to the plaintiff that the defendant intended to charge him with the possession of that letter, and that he should be prepared to produce it, if necessary, to contradict the evidence of the other side, and no further notice to produce was necessary in order to permit the introduction of secondly evidence. Howell v. Huyek, 2 Abb. Dec. 423: Lawson v. Bachman, 31 N. Y. 61S.

Judgment should therefore be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur,