
    Joseph Krause et al., Respondents, v. The J. H. Mohlman Co., Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    Sale — Ratification of acts of purchasing agent.
    Proof that defendant received a portion of the goods ordered by its employee; placed them in stock and included them in its sales list, and retained them for forty days without- objection, is sufficient to re- ' quire a submission to the jury -of the question of ratification of the employee’s act. ■
    Appeal from judgment in favor of the plaintiffs, entered upon a verdict, and from order denying a motion for a new trial.
    Einstein & Townsend, for respondents.
    Louis Cohn, for appellant.
   Conlah, J.

This is an appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a 'new trial,

The action.is brought to recover the contract price, for 10,000 cigars claimed to have been purchased by the defendant from the plaintiffs; 5,000 of which are claimed to have been delivered .on, September 14, 1893, and the plaintiffs have at .'all times since offered to deliver the remaining 5,000 according to the testimony of one Brintzinghoffer, a former employee of the defendant in its cigar department, and a witness for the plaintiffs. He gave .the order for the cigars to one Steindleiy a salesman for the plaintiffs, who "brought it to. their factory, and the order was entered on plaintiffs’ books on August, 29, 1893, as appears by the evidence of -Lewin, one of the plaintiffs.'

It is proper to state that the defendant denies the authority of its employee, Brintzinghoffer,. to order any cigars, and an affidavit. of Brintzinghoffer was put in evidence by the defendant wherein the affiant is made to swear that he did not give the order and had no authority so to do; but it appears that Brintzinghoffer and one Kothe, the latter of whom is conceded by the defendant to have' been the manager of its cigar department down to the ,1st of September, 1893, had visited the plaintiffs’ factory in July or August- previous, in company with Steindler, the plaintiffs’ salesman, and had been shown through the cigar department, and that they were introduced to the plaintiffs by Steindler and discussed with him the question of making a brand of cigars similar in style and make up to a brand called “Leonora,” and of which Brintzinghoffer said he had sold large quantities to his customers, when employed by a former house in the business, and that the name' “ Leonarda ” was suggested as the name of a cigar, the manufacture of which was the subject of the discussion among them at •that time.

A sample box of the “Leonarda” brand was subsequently sent to the plaintiffs and the 10,000 cigars in question were made and boxed after this pattern in pursuance of the order which, it is claimed, had been, given on the 29th day of August.

The plaintiffs state that they' made these cigars specially to fill this order, and that they never made any after this pattern for anyone else.

Brintzinghoffer says of his affidavit that when it was presented for his signature his attention was hot called to the statements therein contained, in that he had no authority and did not give the order, and sustains it by saying that the affidavit was not prepared in detail when he called at the office of the defendant’s counsel on the first day, and he called again the next day and signed the paper handed to him and was. shown before a notary public, who swore him .to its contents) and that his attention was not called by anyone to the statements above referred to as to the amount of authority and his not giving the order.

There appears from the record much conflict of evidence upon the question as to whether or not the order in question was given hy a person having full authority therefor; but we do not think that we are called upon to decide this case .on this very narrow ground.

The affidavit was put in evidence, and together with the contradictory evidence of the affiant on the witness stand was submitted to the jury.

The evidence in chief of all the witnesses for the plaintiffs and defendant is conflicting upon this identical question as to whether the order was given or not by one having authority; but we are not coo fired to this 'branch of the case for a solution of the problem presented by this appeal. The delivery of the first 5,000, in accordance with the order given, is not disputed. They were taken to the defendant’s place of business on the 14th day of September, 1893, received and receipted for by one of the employees and placed in. stock in the defendant’s cigar department and so remained until the 24-th day of October following, a period of forty days, before any complaint was received by the plaintiffs' touching the regularity of the order, and the defendant claims that it undertook to return the cigars and to free itself from the ■ obligation to pay the purchase price.

The return was refused by the plaintiffs on the ground stated already, and the defendant was called upon to receive the remaining 5,000, which were then being held by plaintiffs for them pursuant to the verbal and written orders -of Brintzinghoffer.

• These. written instructions were on the printed letter-heads of the defendant, and" in one of them dated September 11, 1893 (plaintiff’s Exhibit D), Brintzinghoffer writes: “Do not send us more than 5M Leonarda, keep the other 5M at your factory; I am cramped for room,” and inclosed a copy of the defendant’s cigar list.

This cigar list (plaintiff’s Exhibit E) also contained this reference to the brand of the cigars in question: “Our Leonarda cigar is made of long booked Havana filler and prime Sumatra wrapper. This cigar is packed one bundle in a red box. It is Reine Victoria size cigar; a very fine long smoke, -price $58.00 per thousand.” ’

It may be noted here -that the price of this cigar to the defendant was $43.50. The witness Schmidt, the. defendant’s president, says of this cigar list: “ We had a cigar list only in our regular paper that -we sent out (our prices current), that contains all our goods; outside of that salesmen take the privilege to make up lists and send to their customers, and I give them the privilege to pick 'out certain goods and make out lists and send them to their cus- ' tomers. ■ These are not always submitted to me. It is not the rule of our business, nor hardly in any other wholesale grocery business.”

This cigar list purports to be sent out. by the J. H. Mohlman Co. It will be seen that plaintiff’s. Exhibit 1 calls the attention of the defendant at that date to the delivery of the first 5,000 cigars as follows:

. “5,000 of the above order delivered by truckman "Uhlman and ,5,000 we hold subject to your order,” which is in entire harmony with the statement in plaintiff’s Exhibit D, "above noted and referred to.
Of Exhibit 1, the witness Fitzsimons, the defendant’s assistant treasurer, says: “I cannot say whether we ever received that paper. I "have seen one like it, and we received one like it.”

Disregarding entirely, then, the evidence upon which there is a conflict, and leaving out of view the statements of the witness Brintzinghofier, both oral and in his sworn affidavit, we have the uncontradicted evidence that 5,000 of these cigars were received and receipted for by some person in the defendant’s employ authorized for that purpose; that they were placed in stock; that they were included in the cigar list issued by the defendant and sent out to its customers; that it was duly notified of the delivery and of the balance remaining to its order, and that it retained these very cigars for a period of forty days without any word being sent to the plaintiffs by way of complaint or protest of any kind, and we think the trial court properly submitted to the jury the question of ratification of the sale in the following language of the charge:

“If you should find that these cigars were ordered by any person who was not authorized by the defendant company, or that ■ the sale was ratified by any person who had authority to ratify the sale, you must find for the plaintiffs.”

The learned counsel for the defendant invites us, in the ninth, point of his very elaborate brief, to a close scrutiny of the evidence in this case, and says:

“ Appellate tribunals cannot abdicate their functions. The law has clothed them with the power of review, and it should be exercised with freedom,” and, because of this, as he says, “ Jurors take no notice of testimony.”

We have carefully weighed and considered the evidence in the case, and are unable to find therein any sufficient reason for disturbing the finding of the jury.

We are called upon to construe the Statute of Frauds in Point 2 of appellant’s brief, as applied to this case, but are inclined.to the opinion that the case at bar was. removed from the operation of this statute by the delivery and receipt of a portion of the goods in question.

We think the judgment should be affirmed, and the judgment is affirmed, with costs.

O’Dwyer, J., concurs.

Judgment affirmed, with costs. ■ <  