
    Nathan Levy, as Trustee in Bankruptcy of the Prospect Park Brewery, Respondent, v. Peter Huwer, Appellant.
    
      Sale of a brewery by a trustee in bankruptcy — a third party giving his check for ten per cent of a bid made by one erroneously thought to be the agent of another person, cannot repudiate the check — competency of testimony as to the loan of the check by the third person and the promise to obtain the check of the alleged principal.
    
    A trustee in bankruptcy sold a brewery at public auction and accepted one Rohdenburg’s bid of §16,000. Rohdenburg had been asked to bid by one Jergens, who claimed to be acting for one Dole. The trustee forthwith demanded a cash payment of ten per cent with the alternative of continuing the sale. Jergens did not have the money, but induced one Huwer to give his check for §1,600 to the plaintiff, who accepted it. Thereupon the terms of sale were signed “ W. H. Dole, per Theo. H. Rohdenburg,” and all the bidders were dismissed. Dole subsequently refused to take the conveyance on the ground that neither Rohdenburg nor any other person had authority to bid on his behalf. Huwer thereupon stopped payment of his check, and the brewery was subsequently sold at a loss of §1,100.
    In an action brought by the trustee in bankruptcy against Huwer it was
    
      Held, that the defendant could not avoid liability upon the check by proof that he intrusted the check to Jergens to deliver to the plaintiff in the belief that it was a loan to Dole as the principal of Jergens and that the plaintiff knew of the transaction and of the defendant’s belief;
    That it was incumbent upon the defendant to establish that such payment was not the ordinary payment of a percentage to insure a sale, but that it was made on condition that it was not to guarantee the sale unless Dole was the real purchaser who required the loan of the check to secure his purchase.
    Upon the cross-examination of Jergens by the plaintiff, he was asked “ Q. That is, Mr. Huwer loaned the check to you and you promised to get from Mr. Dole, Mr. Dole’s check for §1,600, which you would tender to Mr. Huwer; is that right ? * * * Q. You did promise, did you not, that you would get Mr. Dole’s check and give it to Mr. Huwer?” The defendant objected to each question as calling for a conclusion and as irrelevant, incompetent and immaterial.
    
      Held, that the overruling of such objection did not constitute reversible error for the following reasons:
    
      Mrst, that the questions might be regarded as an interrogation as to what the witness had testified to on his direct examination;
    
      Second, because what was said by Jergens to Dole and what was done in the matter of making out and giving over the check had been repeatedly testified to in the course of the trial, and
    
      Third, because the testimony did not directly bear upon the material point at issue, but related to the dealings between Jergens and the defendant and not directly to the transaction between the defendant and the plaintiff.
    
      Appeal by the defendant, Peter Huwer, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert T. Hetoham [Joseph E. Owens with him on the brief], for the appellant.
    
      Charles Be Hart Brower and Edwa/rd H. Harrison for the respondent.
   Jenks, J.:

The plaintiff sold a brewery at public auction and Mr. Rohdenburg’s bid for $16,000 was accepted. Mr. Rohdenburg was asked to bid by Mr. Jergens. The plaintiff demanded forthwith a cash payment of ten per cent, with the alternative of continuance of the auction sale. Mr. Jergens himself did not have the money, but brought up the defendant, Mr. Huwer, and Mr. Huwer gave his check for $1,600, the ten per cent, to the plaintiff, who accepted it. Thereupon the terms of sale were signed W. IT. Dole, per Theo. H. Rohdenburg,” and all the bidders were dismissed. Mr. Dole thereafter refused to take conveyance on the ground that neither Mr. Rohdenburg nor any other person had authority to bid on his behalf. Mr. Huwer stopped payment of the said check, and the brewery was subsequently sold at a loss of $1,100. The plaintiff brings this action against Mr. Huwer for $1,600 and has recovered a verdict for $1,100. The defense is that plaintiff and defendant, at the time of the delivery of the check, believed that Mr. Dole was the purchaser, that the check was not given and received unqualifiedly, but on the understanding that the check was a loan by Mr. Huwer to Mr. Dole, and that the basis of the transaction failed when it appeared that Mr. Dole was not the purchaser or the borrower of the check.

The termination of the auction sale by the said award of the premises upon delivery of the check was consideration for the check. And the defendant cannot avoid liability to the plaintiff upon the check thus delivered to plaintiff in assurance of the sale, by proof that Mr. Huwer intrusted the check to Mr. Jergens to deliver to plaintiff in the belief that it was a loan to Mr. Dole as the principal of Mr. Jergens in the purchase, and that the plaintiff knew of the transaction and of Mr. Huwer’s belief. If Mr. Huwer was ignorant at the time of the non-authority of Mr. Jergens to act for Mr. Dole, so, too, was the plaintiff. But if Mr. Huwer, in reliance on the assurance of Mr. Jergens, induced the plaintiff to terminate the public vendue by an award to Mr. Dole, by a payment made on Dole’s behalf, the fact remains that he thus voluntarily guaranteed the sale and must suffer therefor, rather than the plaintiff. The source of the check was not the concern of the plaintiff. The mere fact that Mr. Huwer lent the check to Mr. Dole and the plaintiff then knew it, did not affect the payment thereof to the plaintiff on account of Mr. Dole.

It was, therefore, incumbent on the defendant to establish that such payment was not ordinary payment of a percentage to assure a sale, but that it was made under the condition that it was not to guarantee the sale unless Mr. Dole was the real purchaser, who required the loan of the check to secure his purchase. There was much evidence to establish that Mr. Huwer made the check at the instance of Mr. Jergens, who represented that he was the agent of Mr. Dole, who assured the defendant that Mr. Dole would repay and that the plaintiff at the time knew of this dealing between Mr. Huwer and Mr. Jergens, but I fail to find any sufficient evidence that the check was either offered to the plaintiff or received by him otherwise than as the ordinary payment of a percentage to assure a sale.

It is contended that the court erred in certain rulings. Mr. Jergens, when under cross-examination by the plaintiff, was asked: “ Q. That is, Mr. Huwer loaned the check to you and you promised to get from Mr. Dole, Mr. Dole’s check for $1,600, which you would tender to Mr. Huwer; is that right? * * * Q. You did promise, did you not, that you would get Mr. Dole’s check and give it to Mr. Huwer ? ” The objection to each question as calling for a conclusion and as irrelevant, incompetent and immaterial, was overruled under exception, and the answers were received. Of course the ordinary witness must tell facts, not state conclusions. Otherwise the jury must determine the issues upon opinions of the witnesses and could not exercise its proper office of deciding upon facts sworn to. (Nicolay r. Unger, 80 N. Y. 54.) But this question was put upon cross-examination, and theretofore in its course the witness had testified without objection, “I asked Mr. Huwer for a check. I asked him to loan it to me till I could get another check in exchange for it,” and the witness, referring to Mr. Huwer, had testified on his direct examination, After I asked him to loan me the check and he said he would loan it to me till he could get one from Mr. Dole in New York.” The inquiry may be regarded as an interrogation as to what the witness had testified on the direct examination. Again, this was not the only evidence of the transaction between defendant and Mr. Jergens, but the facts thereof, i. e., what was said by Mr. Jergens to Mr. Dole and what was done in the matter of making out and giving over the check had been repeatedly testified to in the course of the trial and by this witness as well as others. And, further, the testimony did not directly bear upon the material point at issue, but related to the dealings between Mr. Jergens and Mr. Huwer, and not directly to the transaction between Mr. Huwer and the plaintiff. This circumstance may at least be considered in the light of this language in Nicolay v. Unger (supra): “ The questions related to the main issue to be tried,” and “ The decisions are numerous that such evidence, when the whole issue in the case turns upon it, is incompetent.” In Pichler v. Reese (171 N. Y. 577) the court, per Gray, J., say: But witnesses may testify to facts which are within their knowledge, even though the facts are such as the jury is, eventually, to determine. There is a distinction between asking a witness to testify to a fact, the existence of which depends upon an inference from a collection of facts or upon the construction of written instruments, and asking him to testify to a fact which is, necessarily, within his knowledge.” For these reasons I think that the rulings do not show reversible error.

The defendant made no point on the trial as to the measure of damages or the sufficiency of the proof thereof, either by exception or motion, and took no exceptions to the charge of Dickey, J.

The judgment and order should be affirmed, with costs.

Goodrich, P. J., Bartlett and Hooker, JJ., concurred.

Judgment and order affirmed, with costs.  