
    Herman F. Klumpp and John J. Brown, Composing the Firm of John G. Klumpp’s Sons, Respondents, v. The American Hardware Manufacturing Company, Appellant.
    Principal and agent — Unauthorized acts — Apparent authority — Appearance of authority arising only from agent’s conduct.
    Appeal by the defendant from an order of the City Court f the city of New York, denying its motion for a new trial.
    Relyea & Bunnell, for appellant.
    Morris Kamber, for respondents.
   Clinch, J.

The action was brought to recover for goods -old and delivered to one E. M. Kinsey, eastern manager of the defendant. The defendant denied that the goods were sold to Kinsey on its behalf or for its benefit and denied his authority to purchase goods for it, claiming he was merely an agent for the purpose of securing and forwarding orders to be filled by defendant. All the goods were delivered to Kinsey or to the Photoscope Company and the bills therefor were made out against Kinsey as the debtor and not against the defendant. The plaintiffs accepted a note of the Photo-scope Company in payment of the claim in suit and in the following form: “ Rec’d Payment By Note Nov. 1st 1904. John G. Klumpp’s Sons per E. D. S.but, notwithstanding this, decided to sue defendant after the note was protested for nonpayment. Plaintiffs .contend that the defendant’s liability is established by the fact that, in giving two orders for goods, Kinsey used the defendant’s letter-head on which he is described as “ Eastern Manager ”, and which he signed “American Hardware Mfg. Co. E. M. Kinsey, Eastern Manager.”

The unauthorized use of the letter-heads does not bind the defendant. The record abundantly shows that the goods were ordered by Kinsey on his own behalf; that defendant knew nothing about the orders and never received any benefit from them. No cause of action against defendant was made out on the trial. There are exceptions in the record which were taken by defendant and which require a reversal of the judgment and order, but it is not necessary to consider them. The motion to dismiss the complaint at the close of plaintiffs’ case should have, been granted, and the motion for a new trial should have been granted.

The order must be reversed, motion granted and a new trial ordered, with costs to appellant to abide the event.

Gildebsleeve and Davis, JJ., concur.

Order reversed, motion granted and new trial ordered, with costs to appellant to abide event.  