
    Lamb v. Hirschberg.
    (New York Common Pleas — General Term,
    November, 1892.)
    In an action for goods sold and delivered, a denial of any indebtedness whatever upon the alleged cause of action admits the sale and delivery and defendants’ promise to pay, unless otherwise denied.
    In an action for the purchase price of goods sold and delivered it appeared that defendants had paid the amount due, to the broker who negotiated the sale, who claimed to have general authority to collect. The broker had been in the habit of collecting for merchandise sold by him, and plaintiff had always ratified and approved the collections. Plaintiff denied having given the authority to collect. Held, that the question of the broker’s authority to receive payment was for the jury, and directing a verdict for plaintiff was error.
    Appeal from a judgment for plaintiff entered upon a verdict rendered by direction of the trial court.
    Action by Hugh Lamb to recover from Augusta Hirschberg and Hulda Hirschberg part of the purchase price of goods sold and delivered, the defense being payment.
    
      Smith & White, for plaintiff (respondent).
    
      Sampter & Fleischman, for defendants (appellants).
   Bischoff, J.

The answer denied that defendants “are indebted in any sum whatever upon the alleged cause of action set forth in the complaint,” and did not otherwise deny the allegations of sale and delivery of the merchandise at an agreed price stated. The denial was, therefore, of a legal conclusion merely, insufficient to raise an issue (Drake v. Cockroft, 4 E. D. Smith, 34; Emery v. Baltz, 94 N. Y. 409, 411), and the sale and delivery to defendants, as well as their promise to pay, were admitted. Code Civ. Proc. § 522.

The defense remaining was payment, and it was conceded on the trial that defendants had paid the amount of their indebtedness to one Beaumont, the broker who had negotiated the sale, and who, at the time of payment, claimed to have authority to collect. This authority plaintiff disputed, and his testimony taken under a commission was to the effect that he had never authorized Beaumont to collect the money. Beaumont, called as a witness for defendants, admitted that defendants had paid him; that he had not accounted to plaintiff for such payment otherwise than by charging himself with the amount, and that he had never received specific directions or authority to collect the sum due plaintiff from defendants. He testified further that he had received express parol directions from plaintiff to collect generally; that he had been in the habit of collecting the sums owing for merchandise sold by him on plaintiff’s behalf, and that, except in the instance of defendant’s indebtedness, plaintiff had always ratified and approved the collections. On motion of plaintiff’s counsel the court directed a verdict for plaintiff under objection and exception for defendants.

It was error to withdraw the question of Beaumont’s authority to receive payment as plaintiff’s agent from the jury. Plaintiff’s denial of having given such authority was not conclusive, because that of a party in interest (Elwood v. Western U. Tel. Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 id. 609; Honegger v. Wettstein, 94 id. 252) and evidence of express authority was not indispensible to sustain the defense. It was sufficient if Beaumont’s authority to collect appeared inferentially from a course of dealing between him and his alleged principal. Bank of Auburn v. Putnam, 1 Abb. Ct. App. Dec. 80; Wood v. A. & R. R. R. Co., 8 N. Y. 160; Hammond v. Varian, 54 id. 398; Olcott v. Tioga R. Co., 27 id. 546; Marine Bank v. Clements, 31 id. 33.

The judgment appealed from must be reversed and a new trial ordered, with costs to appellants to abide the event.

Bookstaver and Pryor, JJ., concur.

Judgment reversed and new trial ordered, costs to abide the event.  