
    Benjamin J. Falk, Respondent, v. Henry Wolfsohn, Appellant.
    (New York Common Pleas—Additional General Term,
    February, 1894.)
    After certain oral negotiations as to the doing of certain work, in which details as to time, cost, etc., were not settled, plaintiff sent to defendant a letter stating the time when the work could be done and the cost thereof, to which defendant replied to go ahead with the work. Held, that such letters did not completely express the contract, and that parol evidence was admissible to show fully what the agreement was.
    
      Where a person in his dealings with another as to similar matters has always dealt as an agent of others, it is necessary, in order to charge him with liability for the transaction in question, to show acts or statements by him from which an inference could be drawn that he was dealing otherwise than as formerly, or that he interposed his personal liability.
    Appeal by the defendant from a judgment of the District Court in the city of New York for the sixth judicial district, rendered in favor of the plaintiff, on a trial had before the justice of the fifth judicial district acting in the absence of the justice of said first-mentioned District Court, without a j™7-
    The nature of the action and the material facts are stated in the opinion.
    
      Benno Loewy, -for appellant.
    
      B. Bewinson, for respondent.
   Giegerich, J.

This action was brought to recover for services rendered, and goods furnished as indicated on the following bill:

“Mr. Henry Wolfsohn, 331 East 14th street,
“ May 16th, 1893, making plates for etching Miss
Van Stosch.............................. $40 00
“ 500 prints of same.......................... 40 00
“Making............................... $80 00”

The negotiations were begun orally in an interview betumeen the defendant and the plaintiff’s manager. Some details, such as time, price, etc., were not settled, .and the following letters were subsequently exchanged:

April 26-, •—93.
“ Mr. Henry Wolfsohn :
“ Dear Sir — We find that it will take at least two weeks to deliver any photogravures, such as you wish to order, of Miss Van Stosch. The cost of making the plate will be $40, and the cost of 500 copies will be 8 cents apiece, making your entire order $80. Regarding the ownership and possession of the plate, we would say that we cannot depart from our rule in this matter. The property of the plate is ours. The amount that you pay is merely for the cost of making the same. If the above points are clear and satisfactory to you please let. us know at once, and we will proceed with your order.
Very respectfully yours,
“ Falk.”

To this the following reply was sent:

“Henry Wolfsohn’s Musical Bureau.
“ Manager- for Leading Artists.
“ New York, Apr. 27, 1893.
“B. Falk, Esq.:
“ Dear Sir—Received your note. Please go on with the Yan Stosch pictures.
“ Yery truly,
Henry Wolfsohn.”

It is obvious upon the face of these letters that they do not contain a complete expression of the contract, and that parol evidence is admissible (it might be said indispensable) to show fully what the agreement was. Beach v. Raritan & Del. Bay R. Co., 37 N. Y. 457; Arms v. Arms, 13 N. Y. St. Repr., 196; 1 Greenl. on Ev. (10th ed.) § 275, p. 385; § 284, p. 397.

The parties evidently took this view of it on the trial, as no. objection appears upon the record to the introduction of the oral evidence. Looking, therefore, to the entire evidence to discover whether the defendant made the contract as agent for Miss Yan Stosch or on his personal account, it is found that, the plaintiff’s manager admitted, on cross-examination, that he knew from defendant’s own statements, made to him in the course of their business dealings, that defendant was Miss Yan Stosch’s agent and manager. Furthermore, it is shown by the defendant’s uncontradicted testimony that he had, as agent, habitually dealt with the plaintiff in giving orders for similar work; that he had authority from Miss Yan Stosch to give this order, and that he had disclosed the fact of his agency to the plaintiff. True, the plaintiff’s manager denies that this, particular transaction was with defendant as agent. He testifies: “We did not make them for him in any capacity what■ever, except for Henry Wolfsohn. His capacity was not concerned in the transaction.” This is nothing more than a loose conclusion of the witness, and nowhere in .the record is there any evidence of anything said or done by the defendant which would warrant an inference that he in this case dealt otherwise than as formerly, or that he interposed his personal liability. This should have been shown in order to charge him with liability. Buck v. Amidon, 4 Daly, 126; Hall v. Lauderdale, 46 N. Y. 70.

The judgment is not supported by the evidence, and it should, therefore, be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.

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