Foster v. Persch

Rapallo, J.

The referee found in favor of the plaintiffs, and the judgment entered on his report was reversed at General Term. The order of the General Term does not state that the reversal was upon questions of fact, and it must therefore be deemed to have been upon questions of law only. Consequently, unless some error of law appears in the case, the order of the General Term cannot be sustained.

The referee found as facts that the goods in question, consisting of flour and groceries, were purchased of the plaintiffs by F. W. Persch, as agent of the defendant. That she conducted the business of baking, and that the goods were all delivered to her. The case contains evidence in support of all these findings. There was evidence that she recognized Persch as her agent in making purchases for her. That she carried on the bakery in Third avenue where the goods were sent. That, on being applied to by the plaintiffs for payment *402 of the bills for these goods, she promised to pay them, and that shortly after the last bill was sold she sold out the bakery, with the good will, trade and business and contents of the store, and executed a bill of sale of the same, and received the proceeds.

The facts thus proved and found were amply sufficient to establish her liability. The referee, however, found in addition that the plaintiffs, on their books, debited F. W. Persch with the goods, but that in so charging them to him they did not intend to exonerate the defendant from liability therefor.

This finding does not necessarily establish that the defendant was ' exempt from liability. Where goods are sold to an agent the legal presumption is that the credit is given to the principal, and entries on the books of the vendor charging the goods to the agent, though of much weight upon the question, are not conclusive evidence that- the credit was given exclusively to him.

(Meeker v. Claghorn, 44 N. Y., 352 .)

In the form in which the case comes before ns the only questions which we can determine are whether the facts found show upon their face that the referee’s conclusion of law was erroneous, and whether any material fact found in favor of the plaintiffs was wholly unsupported by evidence. We cannot look into the evidence for the purpose of ascertaining whether the General Term should have reversed on the ground that the findings of fact were against the weight of the evidence. That inquiry can be entertained only when the order states that the reversal was upon questions of fact.

There being some evidence in support of all the findings and they failing to show upon their face that the referee’s conclusion of law was erroneous, the order of the General Term must be reversed and the judgment on the report of the referee affirmed, with costs.

All concur.

Order reversed and judgment affirmed.