
    James Brand, Resp’t, v. Henry J. Newton, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    Principal and agent—Question of fact.
    Under the state of the evidence, it was held to be a question for the jury to determine whether goods, purchased by a third person and charged to defendant, were sold to the defendant or to such third person.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      E. H. Benn, for app’lt; Morris J. Hirsch, for resp’t.
   Follett, J.

It is alleged in the complaint that between February 24, 1891, and June 4, 1891, the plaintiff sold and delivered goods to the defendant at the agreed price of $3,901.59, which he has not paid, or any part thereof, except $427.83, leaving due $3,-428.76. The answer consists of a general denial. It is not disputed that the plaintiff sold and delivered goods for the price stated, and that there is due him therefor the amount alleged. The question is whether the goods were sold to the defendant or to Henry Van Gelder. Previous to May, 1887, Henry Van Gelder and Charles Van Gelder were partners under the name of Van Gelder Bros., and in that month they made a general assignment for the benefit of creditors to Henry J. Newton. Much of the stock assigned consisted of unmanufactured material, and the assignee employed the assignors to manufacture it into salable articles. In March, 1888, the assignee settled his accounts, and was discharged. After that Van Gelder Bros, carried on a similar business in the name of Van Grelder Bros., as agents, and purchased goods of the plaintiff in the name of the defendant, the bills for which were paid. Subsequently the firm was dissolved, and Henry Van Gelder continued to carry on the same business in his name, as agent. Goods were purchased in 1890 and 1891 in the name of the defendant, which were used by Henry Van Gelder in his business. A witness, called by the plaintiff, testified that he heard the defendant sworn as a witness in December, 1889, and that he then swore ‘‘that thereafter, immediately following the sale of the machinery (in March 1888), he employed or allowed'the firm of Van Gelder Bros., the individuals who formerly composed the firm of Van Gelder Bros., to carry on business as his agents, and to buy goods in the name of Van Gelder Bros., agents, and he stated that they were carrying on business as agents of Henry J. Newton.” The goods were sold on seven different occasions between February 24, 1891, and June 4, 1891, and charged to the defendant, to whom the plaintiff rendered seven bills of items, stating the amount and the price of the goods sold. On every one of these bills the defendant wrote : “ Payment guarantied. H. J. Newton.” The defendant, testifying in his own behalf, denied that Van Gelder Bros., or either of them, were authorized to purchase goods in his name, but admitted that he received the bills of the goods in which they were charged to him,,as the purchaser, and that he wrote upon the face of every one of them the words : “ Payment guarantied. H J. Newton.” He never notified the plaintiff that the goods should not be charged to him. Under this state of the evidence it was a question of fact for the jury to determine whether the goods were sold to che defendant or to Van Gelder, and, having found in favor of the plaintiff, the verdict should not be disturbed as contrary to the evidence.

The defendant moved that the complaint be dismissed. The motion was denied, but no exception was taken, and no exception was taken to the charge or to the refusals to charge. The only questions presented on this motion arise on the appeal from the order denying the motion for a new trial made on the minutes, and on one objection taken to the admission of evidence. The plaintiff testified that Henry Van Gelder told him that he (Van Gelder) had power to buy goods for the defendant. After the testimony had been taken, the defendant’s counsel said, “ I object to the declarations of Henry Yan Gelder.” No ruling was made upon the objection, no exception was taken, and ho motion was made to strike out the testimony. This presents no question for this court. The judgment and order should be affirmed, with costs. All concur.  