Cipolla v. Scerno , 201 A.D. 543 ( 1922 )

Smith, J.:

The plaintiffs entered into a contract with the defendants, whereby the plaintiffs sold to the defendants 40,000 cases of salmon for which the defendants agreed to pay seven dollars and forty cents a case upon the arrival of the salmon in New York. The plaintiffs are copartners and the defendants are copartners having their principal place of business in Genoa, Italy. The contract was entered into through certain letters and cablegrams between the plaintiffs and defendants. At the close of the transaction the defendants named Gerolamo Peschiera, of Genoa, as the actual buyer, for whom the defendants were acting, and stated that they were telegraphing credit. The sale was to be upon a confirmed credit with New York bankers. No such credit was established. The court submitted to the jury whether the contract was made with the defendants as the principals or as agents for other principals, charging the jury that if the contract was made by the defendants, as agents, the plaintiffs, as reasonably careful, prudent and experienced men, should have known that they were agents, and that the plaintiffs cannot recover in this action. The jury found a verdict for the plaintiffs. Upon a reserved motion for a directed verdict on behalf of the defendants this verdict was set aside and a verdict was directed for the defendants.

The defendants offered no evidence upon the trial as to the fact of the agency, except such evidence as may be found from the cable of the defendants that they were not the buyers of the goods. It seems clear that the defendants cannot escape liability upon their contract by naming some other party as the buyer of the goods without showing that there was, at least, such a party in existence, and, also, that they were authorized to act for that party. There is not the slightest evidence that this Peschiera was a living person. He may have been a fictitious person, named by the defendants for the purpose- of. escaping liability on the part of the defendants. There must be some proof, in other words, that the defendants had a principal before the agents can be relieved from liability by reason of their acting as the agents of such a principal. The case is wholly barren of any proof that there was a principal in existence or of any proof that the defendants were authorized to act for such principal, and for that reason the verdict as directed must be set aside. We are of opinion, however, that the defendants should be allowed to make proof of the fact of agency and direct a new trial of the issues.

The judgment should be reversed and a new trial granted, with costs to appellants to abide the event.

Clarke, P. J., Page, Merrell and Greenbaum, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide the evenh