
    Philip Horowitz et al., Respondents, v. Solomon L. Pakas, Appellant.
    (City Court of New York, General Term,
    February, 1898.)
    1. Motion to dismiss the complaint.
    An exception, to the denial of a motion to dismiss, the complaint, is untenable, if the facts supplied by the .'evidence,' given after the plaintiff rested, and after the motion to dismiss was made, sufficiently support the action.
    
      2. Partnership — Notice of change — Parties.
    Where a vendee gives, vendors, with whom he has had prior business ■ transactions, no notice, either directly or inferentially by a change in the form of his checks and business cards, that he has taken a partner, the vendee remains solely liable for goods sold, and cannot Insist that his partner is a necessary party to an action for their price.
    
      Appeal from, a judgment .entered upon a, verdict of a jury in ..favor of the plaintiffs and from an order denying a motion for a new trial.
    David M. Neuberger, for appellant.
    Max D. Steuer & A. Levy, for respondents.
   O’Dwyer, J.

The action was brought to recover the agreed price of 560 lamps, alleged to have been delivered to the defendant on the 11th day of May, 1897.

The plaintiffs’ witness Joseph Horowitz, testified: “ I did on the 11th day of May, deliver 560 bicycle lamps. Hone of those lamps have ever been returned. The plaintiffs never received any of those lamps from the defendant. The agreed price of said lamps was $9 per dozen, less 10 per cent. For 560 lamps that would be $378. I have demanded payment of that sum. It was not paid.

“I spoke to Mr. Pakas after the delivery of these 560 lamps. I never spoke as to- whether he received them or not. He said he received 560 lamps. I .asked him for a check. He said he would send me a check. He Bent me a check for $268. The check was returned to Mr. Pakas,” and the defendant admits that he received the check returned.

The udtness Horowitz testified: “We delivered them by the truckman. They were delivered — 560 lamps, with our boy. They were delivered with our errand boy with !a truckman. They are not in court. We have the receipt for the goods.” "

The defendant testifies: “I gave him the order for 10,000 lamps. They were not delivered at all. I don’t know how many we got; I believe about 1,000; maybe 2,000. . We have had about three or four deliveries in .all. I sent a check for $268; for the full amount, as I afterwards tried to dispose of those lamps sent.”

A letter from the defendant, Exhibit B, is introduced in evidence, and is as follows:

“ We have yours of yesterday’s date,- and beg to hand you check for $268 to settle our account with you. We have sufficient proof on hand that you sold to others at ten cents less than you did to- us, and as we have your contract in hand, wherein you agreed to make good to us any such difference in price, that should result from " your underselling the price you agreed to maintain in your agreement of the 22d inst., we have,.therefore, in accordance, with the same, taken off the difference on your bills of the 26 th ult. and 11th inst., as you have violated your agreement.”

This letter is dated May 25 th, and in it is inclosed a check for the bill of May 11th. The bill of May 11th is the bill that is sued for in this action.

The testimony tended to prove the delivery of the goods, and the defendant’s motion to dismiss the complaint on that ground was properly denied.

An exception to the denial of the defendant’s motion for a dis-' missal of the complaint is not available, if the facts supplied by the evidence, after the plaintiffs rested and the motion was made, are requisite to- support the action.

On appeal, the court is to determine on the whole testimony, whether or not delivery is proved, and not simply on the testimony submitted before the motion to dismiss the complaint, and we are of the opinion that plaintiffs did, by a fair preponderance of evidence, prove a delivery of the goods in question.

The defendant’s next defense was that the transaction was had with a partnership of which this defendant was one member, and' that an individual known as Emanuel A. Brecher was also one of the firm, and,, therefore, a necessary party. The transaction in question was had with'the International Cycle Fittings Company of the city of Mew York. •

The plaintiffs’ witness testified: “ I asked him, if anybody else was in the business of the International Cycle Fittings Company. He said, ‘ Mo; I am Mr. Bakas, and I am the owner of the International Cycle Fittings Company.’ And when I closed.the sale with him for 10,000 lamps, I asked him, ‘ Who is the International Cycle Fittings Company? ’ And he said, ‘My name is Pakas; I am the proprietor of the International Cycle Fittings'C'ompany. ’ ”

.The defendant testified that he had a conversation with Horowitz, and that Horowitz said: “ If I (the defendant) give him a large order, that ¡he will put me in a position where I can sell anybody lamps at just the same prices as they would sell it to themselves, but he wantpd á large order — 10,000 lamps. I agreed to it, and he put the price down to seventy-five cents. I gave him the order for 10,000 lamps. I sent a check for $268. They said I could buy them iat such and such prices: I could not sell them afterwards. * * * I know a corporation known as the Crown. Electrical Manufacturing Company. I have an agreement with them at the present time. That agreement is in existence to-day, and that agreement describes me, Solomon L. Pakas, trading as the International Cycle Fittings Company. I signed checks before the 15th of February the same as we do to-day. This is one of our cheeks issued the day before yesterday. I signed that £ International Cycle Fittings Company, Solomon L. Pakas.’ * * * I have a business card. There is nothing on that card about Emanuel A. Brecher. Those were printed before that time, too. I have no cards with Emanuel A. Brecher on. I have no bill-heads. We are using the old ones as-they come.”

The evidence showed that the plaintiffs and the defendant had had some business dealings prior to the one of April 22d. The defendant nowhere testifies that he ever notified the plaintiffs that he changed his firm and took in a partner. They had a right to assume, therefore, that the firm remained as before; and as he never' disclosed to them that there was a partner, he is liable to them individually, even though he did have a partner when this transaction of April 22d took place.

. It is uncontradicted on the record that the plaintiffs had no knowledge that the defendant had any partner, or that he took any in, and the defendant himself testified that everything,' before he became a partner, was just the same 'afterwards.

Upon this evidence the court charged much, more favorably to the defendant than he was entitled. The court charged: •“ If you find that there was a partnership at the time this transaction took place, between the plaintiffs and the defendant, you will find for the defendant. If you find that there was no partnership, that the goods were sold and delivered to Pakas solely, your verdict will be for the plaintiffs.”

This was an affirmative defense, and th'e burden of proof was on the defendant. - The jury,, after this instruction, found that there was no partnership, that the goods were sold solely' to the defendant Pakas, and rendered a verdict for the plaintiffs, and we are of the opinion that the verdict is borne out by the evidence and shonld not be' disturbed!

The defendant’s third defense, that there was a breach of contract on the part of the plaintiffs, in that they sold the goods at a price lower than that which they had contracted to sell at, was unsupported by any evidence.

The exceptions taken during the trial do not show reversible' error, and it follows that .the judgment and order appealed from should be affirmed, with costs.

McCarthy, J., concurs.

Judgment and order affirmed, with costs.  