
    W. J. Morgan & Company, Appellant, v. Fred E. Heitmann, Respondent, Impleaded with Louis Kindermann, Defendant.
    Second Department,
    October 18, 1907.
    Contract to print and. hold for delivery — erroneous nonsuit.
    In an action to recover tbe balance due on a written contract under which the. plaintiff was to print for the defendant and have ready foi" delivery certain advertising posters, a nonsuit is error when the contract and the amount ■ unpaid thereon are admitted.
    Under such contract- delivery need not tie shown, nor should the complaint be dismissed because the authority of the defendant’s agent to order additional printing was not established, for in any event the plaintiff was entitled to recover the unpaid balance admitted.
    
      Appeal by the plaintiff, W. J. Morgan & Company, from a judgment of the Municipal Court of the city of Mew. York, borough of Brooklyn, in favor of the defendants, rendered on the 11th day of December, 1906, dismissing the complaint.
    
      Maxson & Jones, for the appellant.
    
      Henry Weismann, for the respondent.
   Rich, J.:

The defendants entered into a written contract with the plaintiff, by the terms of which the latter agréed to print and have ready for delivery on or before June 10, 1905, 500 twenty-one-sheet descriptive stands in two colors, and 1,500 three-sheet posters in four colors, for the use of the German Marine Band, a traveling musical organization, of which the defendant Ilindermaim was'bandmaster or leader. The defendants agreed tó pay for such work the sum of $645, payable $175 in advance and the balance in weekly payments as the printing was used, beginning on or about June seventeenth, but all to be paid for by January 1, 1906, whether used or' not. It was further provided that the plaintiff should store, at the defendants’ risk and expense, any balance of printing remaining on hand at the close of the season. One Isham Was engaged by Iiindermann as manager of the hand, with the knowledge of the defendant Heitmann, who testified: “ That was left between Kindermann and Isham to make the arrangements ” for the printing. Isham directed plaintiff on different occasions to ship stated quantities of the advertising matter so contracted for to places named by him where he received such shipments and used them in advertising the band. He subsequently ordered additional printing amounting to $275. It was not shown that the defendant Heitmann authorized or had knowledge of this purchase. Payments were made upon the contract if rom time to time, and this action was brought to recover a balance unpaid onu the contract, including the value of the extra printing ordered by Isham, the plaintiff’s theory being that Heitmann was the owner and financial backer of the ■band, and that Isham in ordering the. additional printing acted as the agent of Heitmann, with authority.

The secretary of the "plaintiff company was examined as a witness upon a commission, and the answers made by him to- the interrogatories showing performance of the contract by plaintiff were excluded by the trial court upon objection made that such interrogatories were incompetent as calling for the conclusion of the witness. At the close of the plaintiff’s evidence the trial court held that a cause of action was not- established by the evidence, and dismissed the complaint. ' -

In this I think it was .in error. The plaintiff’s right to recover the unpaid balance upon the contract did not rest upon the relation Heitmann sustained to the German Marine Band’, the delivery of the printed matter, or whether Isham in ordering the. additional printing was Heitmann’s authorized agent. - Upon establishing the contract and showing the printing, the-plaintiff was entitled to. recover of the defendant Heitmann such unpaid balance. The contract and amount unpaid thereon were admitted; delivery by the plaintiff was not required by the contract. The plaintiff agreed to do the printing, ready for delivery, and hold it subject to defendants’ orders. It was to be paid for whether usedmr not. '

It was shown by the evidence of one Lynch that the posters were printed, • ■ Isham testified that the quantity thereof stated and ordered by him in his letters and telegrams were actually received by him and used as manager of the band, and Lynch testified that the balance was stored in plaintiff’s warehouse in Cleveland. This evidence. established a prima, facie case ' entitling the plaintiff to recover the balance past due and concededly unpaid.upon the contract, and the dismissal of the complaint was error. As this conclusion requires a reversal of the judgment, we do not deem it expedient .to consider" the many other questions presented, wliicli will presumably not arise upon a new trial.

Tlie judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. . ’  