
    Samuel Langenthal, Respondent, v. Moses Oberman, Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1915.)
    Contracts — damages for breach of — conflicting evidence as to'sale'of goods — when judgment entered on verdict reversed.
    Where in an action to recover damages for breach of a-contract to deliver goods one of the main issues was whether the goods were sold, if at all, by defendant personally or as agent of a corporation, and the evidence on the point is conflicting, an instruction to the jury that as matter of law the contract was made with defendant is error for which a judgment entered on a verdict in favor of plaintiff will be reversed.
    Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered, upon the verdict of a jury.
    George D. Zahm, for appellant.
    ■ Samuel Schack, for respondent.
   Bijur, J.

This action was brought to recover damages for breach of a contract to deliver goods. One,of the decisive issues involved was the question whether the goods were sold, if at all, by the defendant personally or by him as agent for the Grafton Roller Mill Company.

The learned judge below instructed the jury that the contract was with defendant as matter of law. Defendant testified repeatedly that he told plaintiff that he was acting solely as a middleman or agent for the Grafton Roller Mill Company. Two copies of a paper were put in evidence. Had these been filled out and been properly executed by both parties they might have constituted a contract; but they were only partially filled out. Passing that objection, however, the defendant admitted that the words The Grafton Roller Mill. Co.,” printed in the body of both papers, had been stricken out by him and his own name written in in place thereof. The signature on the copy produced by the plaintiff has the name of the company erased as also the word “ salesman,” leaving the signature as that of the plaintiff personally. The copy produced by the defendant is signed “ The Grafton Roller Mill Co., seller, by Oberman, Salesman.”

Assuming the papers to represent a contract, the signature on defendant’s copy would, if defendant had authority to act — concerning which there seems to be no dispute — have bound the company notwithstanding its name did not appear in the body of the contract. See Electric Carriage Co. v. Herman, 67 Misc. Rep. 394. Defendant testified that he had not stricken out the corporate name on plaintiff’s copy, and contended that that had been done by the plaintiff. Prom every point of view, therefore, there was a sharp issue for the jury to determine, in respect of whether the defendant or the Grafton Roller Mill Company had made whatever contract was entered into. The existence of the issue was emphasized by correspondence introduced in evidence by the defendant between plaintiff and the mill company subsequently to the alleged breach of the contract, in which, among other things, plaintiff writes: “ October 23rd, Oberman sold me for your account ” goods in controversy. As due exception was taken to the court’s charge above referred to, the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Page and Shearn, JJ., concur.

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