
    Alfred Booth and Others, Respondents, v. Harrie G. Newton, as Sole Qualified Executor, etc., of Henry J. Newton, Deceased, Appellant.
    
      Oomplaint-for goods purchased—proof that the defendant’s testator guaranteed the payment of the goods which were purchased by a third person — agency, when not established by declarations.
    
    Where an action is brought to recover for goods alleged to have been sold and delivered by the plaintiffs to the defendant’s testator, the plaintiffs cannot recover upon proof that a third person purchased the goods, and that the testator guaranteed their payment.
    An agency cannot be established by declarations of the alleged agent, made in the absence of the alleged principal, to the effect that the agency existed.
    Appeal by the defendant, Harrie G. Newton, as sole qualified executor, etc., of Henry J. Newton, deceased, from a judgment of the Supreme Court in favoi\of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of February,. 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      E. H. Benn, for the appellant.
    
      N. T. M. Melliss, for the respondents.
   McLaughlin, J.:

This action was brought to recover the purchase price of certain goods alleged to have been sold and delivered, between the 27th day of July and the 6th day of November, 1891, to Henry J. Newton, the defendant’s testator. The answer denied the sale and delivery. The plaintiffs had a verdict for the amount claimed, and from the judgment entered thereon the defendant has appealed.

At the trial it appeared that prior to March, 1888, a firm- by the name of Van Gelder Brothers, which was composed of Henry and Charles Yan Gelder, made a general assignment for the benefit of creditors to the said Henry J. Newton ; and that in certain actions thereafter brought against him to recover the purchase price of goods sold and delivered to the Van Gelder Brothers, Hewton testified that he employed the assignors to sell and dispose of the assigned estate, and after the same had been disposed of he permitted them to carry on business in his name and to purchase goods as his ageiit; - that in March, 1891, Henry Yan Gelder called upon the plaintiffs and had a conversation with one' of . them, Julius Kuttner, in reference to purchasing goodsj and tliat he then stated in substance that he would like to buy some goods if the plaintiffs’ firm would' sell them to him on the same terms that they sold to other customers, and that if .they would do so Hewton (referring to the said Henry J. Hewton) would “ back him up; ” that he: desired the goods delivered at his factory, Ho. 163 Bleecker street, together with duplicate bills, one of which he stated he would take to Hewton, have, him write across the face of- it “ Payment guaranteed,” and then return it to the plaintiffs; that in this conversation and a subsequent one Tan Gelder stated in substance that he was acting as the agent of Hewton, and making the purchases for him. In pursuance of these conversations the plaintiffs delivered to Tan Gelder, at his factory, goods referred to in the complaint, and at the time of each delivery duplicate bills, made out in the name of H. J. Hewton, were sent to Tan Gelder, one .of which, in due course of time, was returned to the plaintiffs with the words “ Payment guaranteed, H. J. Hewton,” written across the face. Only the first bill of goods delivered was paid. A bill for goods delivered on the 27th of July, 1891, not having been paid, and ' the term of credit given having expired, the plaintiffs, on the 29th of January, 1892, wrote to Hewtbn the following letter:

“Hew York, Jan. 28th, 1892.
“ Mr. Henry J. Hewton, Oity:
“ Dear Sir,— W'e beg to inform you that Mr. Tan Gelder has failed to pay bill of July 27th, 1891, amounting to $563.58, as per statement herewith, and under your guarantee we look to you for the payment of this bill. Kindly send us your check at your earliest convenience and much oblige.
“ Yours truly,
“ BOOTH & CO.
“ Juu Kuttner.”

As each bill of goods thereafter became" due a letter malting a similar demand was sent to Newion by the plaintiffs, and on the 13th of February, 1892, their attorneys sent to him the following letter:

“No. 25 Pine Street, New York, February l§th, 1892.
Mr. H. J. Newton, 128 West 43rd St., New York City:
“ Sir.— Please take notice that we hereby demand from you payment of the following sums of money with interest from the dates written opposite said sums respectively, and all of which are due from you on your written guarantee to pay the same to Messrs. Booth & Company, of No. 88 and 90 Gold street, this city.” (Here .followed the amounts claimed.)
“Yours, &c.,
“ MELLISS & EICHARDS,
Attorneys for Booth <& Gom/panyP

A letter making a similar demand was also sent by these attorneys to Newton, as the payment of each of the bills thereafter became due. Newton did not pay and the plaintiffs commenced three actions to recover from him the purchase price, upon ■ the ground that he had guaranteed the payment of the same. In the ■complaints, which were verified, in those actions the plaintiffs ■alleged, not on information and belief, but as a fact, that “ in consideration of plaintiffs’ said firm extending the time for the payment of said sums by said Van Gelder for the period of six months, '* * * the defendant, by an instrument in writing, * * * guaranteed thé payment to the plaintiffs’ said firm of the full amount of said bill.” All those actions after issue had been joined were by consent discontinued. Newton died December 23,1895, and on the ,26th of March, 1896, this action was brought against, his executor.

At the close of the plaintiffs’ case the defendant moved to dismiss the complaint, which motion was denied and an exception taken. 'The defendant then read the deposition of Henry Van Gelder, in which he stated in substance that in making the purchases of the goods referred to in the complaint he acted, not as the agent of Newton, but for himself ; that Newton had no interest in or connection with the transaction other than to guarantee the payment of the goods purchased by him, and at the time of the purchase these plaintiffs were so informed. He* denied that he informed the plaintiffs that'he was acting as the agent of Newton or making the purchases for him. ■ .

At the close of the whole case the defendant renewed his motion to dismiss the ’ complaint upon the grounds stated in the former motion, which was, among others, that the plaintiff had failed to establish that Van Gelder in making the purchase was the agent of Newton, or was authorized to act for or bind him in any way,' and also upon, the ground that the testimony showed that Newton did not purchase the goods as alleged in the complaint, and that his only relation in connection with the transaction was that of a guarantor.. The motion was again denied, and the defendant excepted.

The testimony introduced was such that it manifestly would have justified the trial court in dismissing the complaint; The proof was, insufficient not only to establish the agency of Van Gelder, or authority bn his part to bind Newton in: making the purchases, but it negatived that fact. It appeared (1) that all the arrangements as to the purchases were made with Van Gelder, and that the .goods were all delivered to him; (2) that Van Gelder having failed to pay, the plaintiffs demanded payment of Newton, not because he had purchased the goods, but because lie had guaranteed the payment; (3) that the plaintiffs’ attorneys demanded payment from Newton on the ground that he had guaranteed the payment, and not because he was liable' as the purchaser; (4) that in the actions brought against Newton which were discontinued, the plaintiffs alleged that Van Gelder was. the purchaser, and that the defendant was liable because he had’ guaranteed the payment. In addition to' these facts Van Gelder testified that in making the purchases he did not act for or represent. Newton ¡'that he acted for himself and no one else, and that-in the .’interviews or some of them when the purchases were made,, he informed -Kuttner, one of the plaintiffs, that he was acting for himself. The fact that the plaintiffs made out their.bills in Newton’s name could not in and of itself bind him any more than could the declaration of Van Gelder that he was acting for Newton. This, being the condition of the testimony at the close of the whole case,, it seems.to us the complaint should have.been dismissed.

We think the court erred in not excluding the testimony of plaintiffs’ witnesses to the effect that Yan Gelder stated in conversations with one of' the plaintiffs in the absence of the testator that in making the purchases he was acting as the agent of and represented Newton, and that the purchases were for him. Manifestly Yan-Gelder could not constitute himself an agent of Newton by saying so. The rule is too well settled to require the citation of authorities that one cannot constitute "himself the agent of another by his own declarations. The defendant duly objected to the admission of this kind of testimony. The objections were overruled and exceptions taken. The objections should have bee.n sustained and the testimony excluded, and for the errors thus committed the judgment must be reversed.

The judgment must also be-reversed for errors committed by the learned trial justice in submitting.the case to the jury. The theory upon which the plaintiffs claimed the right to recover was that the goods were sold, and delivered to Newton ; that Yan Gelder was Newton’s agent, and what he did bound Newton. The theory of the defense was that the goods were sold 'and delivered to Yan Gelder, and that Newton was liable, if at all, not as a purchaser, but solely as a guarantor. This was the principal issud tried, and, therefore, no good reason can be suggested why the learned trial court should have refused to charge the following request of the defendant : “ If the jury from the evidence finds that the transactions between the parties constituted a sale by the plaintiffs to Yan Gel-' der, and an agreement by Newton to guarantee payment, their verdict must be for the defendant.” An exception was taken to the refusal, and we think the exception well taken. We are also of the opinion that the learned trial justice erred in refusing to charge each of the following requests, and that the defendant’s exception to each refusal was well taken: (1) “That mere declarations of Yan Gelder that he was acting as agent for Newton are not sufficient to prove the agency. The jury must find that there has been other evidence of agency in addition. If they fail to find it, their verdict must be for the defendant.” (2) “ It is not enough that the plaintiff should establish an agency of Yan Gelder for Newton for the purpose of purchasing goods at some other time or times. The plaintiff is bound to establish by a preponderance of evidence that at the time that Yan Gelder purchased the goods in suit from the plaintiffs lie then was the duly authorized agent of Newton to do so.” * '

Other requests to charge were refused, which, in oúr opinion, should have been granted, but it is unnecessary to specify them, in detail. Enough has been said to show that the judgment , and order must be reversed and a hew trial granted, with costs to the appellants to abide the event.

Van Brünt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

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