
    James E. Nichols et al., Appellants, v. Philip Nehrbass, Respondent.
    (Supreme Court, Appellate Term,
    December, 1897.)
    1. Sale — To whom the credit was given—Evidence.
    Where the issue, in. an action for goods sold, brought against a father, is whether he or his son, bearing" the saíne Christian name, bought the goods, the father may properly be allowed to show that his son paid the rent of the store; that the father had no interest in it; that the name of the son was displayed on the sign and, by the testimony of daughters, engaged in the store, that they never knew their father to order goods.
    2. Same — Evidence — Similarity, in name.
    Where two persons sought to be charged for goods sold, both bear the name of Philip Nehrbass, it is proper for the court to charge the jury that the fact that the name — Philip Nehrbass — was signed to receipts given for the goods upon their delivery is no evidence that thé father ordered them.
    Appeal by the plaintiffs from an affirmance by the General Term of the City Court of a judgment in favor of the defendant entered upon the verdict of a jury.
    William S. Maddox and Hotchkiss & Maddox, for appellants.
    A. H. Berrick, for respondent.
   Daly, P. J.

The plaintiffs, who are wholesale grocers, sued to recover for goods to the value of $110.02 furnished between November 5 and November 28, 1893, to the retail store No. 64 Avenue B, and the question submitted to the jury was whether the goods were ordered by the defendant or were furnished to any business in which he was interested. It appears that he had a son bearing his name, and the defense was that the business at' Avenue B belonged to the son, and was opened in July, 1893; that previous to that date the defendant had a place of business in Fourth-street and dealt with plaintiff, but that that business was discontinued and defendant went to Europe for -his health before the place in Avenue B was - opened. He returned in September, and lived with his son and daughters over that -shop during the period that the goods in suit were ordered and delivered. The plaintiffs’ salesman swore that the goods Were personally ordered by the defendant.-

The latter denied it, and the trial court admitted, on behalf of defendant, evidence that his son paid the rent of the store; that the father had no interest in it; that a sign bearing the name Philip Nehrbass, Jr., was displayed there, and the testimony of the sisters of Philip Nehrbass, Jr.,-who were in. the store, one part of the time and one all the time, that their father never, to their knowledge, gave an order for goods. To. the admission of this evidence the pláiñtiffs excepted.

It was .competent, upon the issue as to whether these goods were sold to the defendant, to show that the business to which they were furnished did not belong to him; for, although the plaintiffs’ salesman testified to direct orders for the goods given personally by the defendant, the personal transactions were denied, and if the jury were in doubt on that point, they could have found for the plaintiffs if they believed that' the business belonged to the defendant and that the goods were supplied to it; as he would be liable then as an undisclosed principal.. That very issue was submitted to the jury on the charge of the court, without objection, the trial judge saying: “ The issue that is presented here is that the defendant is not liable for the debt inasmuch as he never contracted it; that the goods were not furnished for any business in which he was interested, and that he never ordered them.” Having acquiesced in the submission of the question of liability on the issue as to actual ownership of the business, plaintiffs cannot now argue that the evidence referred to was irrelevant.

The testimony of the sisters of Philip Nehrbass,. Jr., who assisted in the business, that they never knew of orders for goods being given by the father, was admissible as showing the absence of acts of control or interference with the business on his part.

One of these sisters was always in the .store, and was in a position * to know whether he gave orders; the other was present part of the time, and her testimony, of course, related to that part of the .period in question. Their evideñce_ was of the same character as that offered to show that the business in which the goods were ordered was the son’s and not the father’s.

There was but one exception taken by plaintiffs to the charge to the jury. The defendant asked the court to charge that the fact of the name of ‘ Philip Nehrbass,’ signed to the receipts, is no evidence that.he ordered the goods.” The court charged it, and the plaintiffs excepted; and the question is whether the instruction was proper. The receipts in question were given undér the four several deliveries of the goods, at the Avenue B store,, on November 6th, 14th, 17th and 28th, respectively. Each was signed Philip Nehrbass, and the signatures to three of them were in the hand of one of the sisters, hnt the fourth and last was signed by the defendant. This fact afforded, ground for inferring that he had some interest in the business, and also tende'd to corroborate the testimony that the goods were originally ordered by him. The court did not charge the contrary; and, in fact,-'in response to a previous request of the defendant to charge that the receipts were not evidence that the defendant gave the order, or that credit was extended to him, expressly refused to so instruct the jury.

The charge to which the plaintiffs excepted evidently referred to the inference which it was thought might be drawn from the form of the signatures to all four receipts, which purported to be that of Philip Nehrbass, Sr., and not Philip Nehrbass, Jr., since it was written simply “Philip Nehrbass.” The defendant asked an instruction that the fact that the name was so signed, or written, in all the receipts, was no evidence that he ordered the goods, and that was correct. The instruction did not refer to the effect of the admitted signature to the last receipt, but to the form of all of them. As to three of them, they were not in his hand, but in his daughter’s; and while her act might be significant, with respect to the ownership of the business, it had no bearing on the issue as to the personal transaction between the defendant and the plaintiffs’ salesmen. The charge was, therefore, correct when considered in connection with the instructions already given, and could not have been understood by the jury as a ruling with regard to the one admitted signature of defendant instead of the form, merely, of all the signatures. No request for instruction on this, or any, subject was made by plaintiffs, who could have cleared up any ambiguity or uncertainty by a timely suggestion.

The judgment should be affirmed, with costs.

MgAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs. ■  