Fleischer v. Wein

• Decision Date: 22 January 1918
• Citation: 92 Conn. 372,102 A. 769
• Court: Connecticut Supreme Court
• Parties: FLEISCHER. v. WEIN.

102 A. 769

92 Conn. 372

FLEISCHER.

v. WEIN.

Supreme Court of Errors of Connecticut.

Jan. 22, 1918.

Roraback, J., dissenting.

Appeal from Court of Common Pleas, Fairfield County; John J. Walsh, Judge.

Action by Isaac Fleischer against Louis Wein, to recover for merchandise alleged to have been sold and delivered to defendant. Brought to and tried by the court. Facts found, and judgment rendered for defendant, and appeal by plaintiff. No error.

The defendant, a resident of Greenwich, was, for a period of time prior to July 29, 1915, the owner of a grocery store in that town, which, until some time in May, 1915, he personally conducted. In May, 1915, he accepted employment as a chauffeur, and the store was then conducted by his brothers. July. 29, 1915, he made a bona fide sale for valuable consideration of the business to his father, Abraham Wein, who thereupon took it over and carried it on. On July 9, 1915, a statutory notice of intent to sell was filed by the defendant in the town clerk's office of Greenwich, and the bill of sale given by him to his father on the 29th was recorded the next day. In August, 1915, the defendant, while still acting as chauffeur, broke his leg, and was compelled to give up his employment in that capacity. On or about September 15th, having recovered sufficiently from his injuries, he entered into his father's employment as manager of the store at an agreed wage of $15 per week. During all the time from July 29, 1915, until his return to the store about the middle of September he had nothing whatever to do with its conduct. After the middle of September he continued through the whole period covered by the transactions involved in this case to conduct the store as his father's agent and in his father's pay. The latter lived and carried on another business in the adjoining town of Port Chester, N. Y. He was unfamiliar with the conduct of a store, and did not participate personally in the conduct of the one he had purchased from his son.

The plaintiff was a baker. Early in November, 1915, he for the first time sold and delivered certain goods to the store in Greenwich, and continued to do so until some time in February, 1916. The total amount of his sales so made was $137.83. Of this amount $25 was paid to the plaintiff by Abraham. The remainder has not been paid. The goods were ordered by the defendant in charge of the store, and the same were entered upon the plaintiff's books as charged as follows, to wit, the first two pages of entries to "Wein" "Greenwich" and the remainder to "Louis Wein." All bills contracted in the conduct of the business at the store were paid either by checks of Abraham Wein or by cash taken in at the store.

The store bore no sign, inscription, or notice indicating to whom the business belonged. During the time covered by the plaintiff's sales, or at least some portion of it, the name of Louis Wein appeared in both the general and telephone directories of Greenwich as the proprietor of the store, but it was placed therein before the sale, and when Louis was the proprietor. In the store at the time of sale were certain blank order slips with the name of Louis Wein thereon. These slips were, for reasons of economy, used subsequent to the sale as receipts for goods delivered, and such receipts were given to the plaintiff. The plaintiff made no examination of the records in the town clerk's office, and no evidence was given of representations made by either Louis or Abraham as to the ownership of the store. Demand for payment of the plaintiff's bill was made by him of Abraham personally, he having gone to the latter's house in Port Chester for the purpose. In March, 1916, Abraham was adjudicated a bankrupt. The plaintiff extended credit to the owner of the store and not to Louis.

Robert R. Rosan, of Greenwich, for appellant. Frederick G. Schmidt, of Port Chester, N. Y., for appellee.

PRENTICE, C. J. (after stating the facts as above). The plaintiff seeks recovery for goods sold and delivered by him upon order to a store in Greenwich. Abraham Wein, the defendant's father, was the proprietor of this store. The defendant, during the whole period covered by the plaintiff's dealings with it, had no other connection with it or interest in the business there carried on than as his father's agent in its management. He cannot therefore be held liable for the plaintiff's account, a rightful charge against his father, unless the goods whose sale and delivery furnish the basis of it were sold and delivered upon the defendant's credit.

The court has found that the plaintiff in his transactions with the store extended credit to its owner, the defendant's principal, and not to the defendant. This is a finding of fact. If it is to stand the judgment exonerating the defendant from liability necessarily follows. It must stand unless as an ultimate fact it is inconsistent with the subordinate evidential facts which are found, or its deduction from those subordinate facts was one which could not reasonably be made.

We are unable to discover such inconsistency or unreasonableness, especially in view of the facts that the only credit appearing upon the plaintiff's account was for a payment made by Abraham, and that the plaintiff sought out Abraham to make personal demand of him for payment of the balance due. In the face of these facts strongly suggestive of the plaintiff's knowledge of Abraham's proprietorship and of a giving of credit to him, a trier might reasonably regard the other facts upon which the plaintiff relies as furnishing less convincing indications as to the person whether the principal or the agent, upon whose credit the sales were made. The original entry in the plaintiff's books is as readily explainable upon the theory that it was used to indicate the place of business as of the place of residence of its proprietor, and the use of the order slips was an incident of the transactions with the plaintiff entirely consistent with knowledge of the true proprietorship. The absence of a sign possesses only such negative significance as arises from an absence of a representation of ownership by that method, and the directory entries, speaking the truth when made, possess no importance touching the plaintiff's knowledge, since it does not appear that they ever came to the plaintiff's notice.

There is no error. In this opinion WHEELER, BEACH, and SHUMWAY, JJ., concurred.

RORABACK, J. (dissenting). I am unable to agree with the conclusion just announced although it may be conceded that the defendant purchased the goods in question as agent. It is well settled that:

"It is the duty of the agent, if he would avoid personal liability on a contract entered into by him on behalf of his...