(111 Misc. Rep. 610 ELM COSTUME CO., Inc., v. B. EDMUND DAVID, Inc. (Supreme Court, Appellate Term, First Department. May 13, 1920.) Witnesses 406-Evidence tending to impeach statement by witness on cross-examination held erroneously excluded. In buyer's action for breach of contract to sell and deliver merchandise, where it appeared that part of the merchandise had been replaced as being defective, and defendant's witness testified that the merchandise which plaintiff had returned was perfect, it was error to exclude a credit memorandum from defendant, allowing a certain amount for "poor finish"; such evidence clearly tending to impeach witness' testimony that the pieces returned were perfect. Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by the Elm Costume Company, Inc., against B. Edmund David, Incorporated. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Morris & Samuel Meyers, of New York City (Morse S. Hirsch, of New York City, of counsel), for appellant. Adam Wiener, of New York City, for respondent. GUY, J. Plaintiff appeals from a judgment in favor of defendant, entered on the verdict of a jury in an action brought to recover damages for breach of a contract to sell and deliver merchandise. By the contract the defendant agreed to sell and deliver to plaintiff 29 pieces of satin crépe, and 20 of said pieces were delivered, accepted, and paid for, and the action is brought to recover damages for failure to deliver the remaining 9 pieces of merchandise called for by the contract. The answer admitted the contract, denied each and every other allegation of the complaint, and, as a separate defense, alleged delivery of all the merchandise called for by the contract, and that it was ready and willing, at all the times set forth in said answer, to carry out the terms of said contract. At the trial it appeared that defendant actually delivered to plaintiff about 30 pieces of crépe, of which 10 pieces were returned by plaintiff to defendant as defective, and plaintiff's witness testified that defendant accepted the same, actually replaced and delivered 1 piece, and offered to replace 3 other pieces. Defendant's salesman testified on cross-examination that there was no agreement between him and plaintiff that any pieces of merchandise were to be replaced, as claimed by defendant. Another of defendant's witnesses testified that the merchandise which the plaintiff returned was perfect. On rebuttal, plaintiff proved the receipt of a credit memorandum from the defendant containing the following clause: "Poor finish 220, 203.50." This memorandum was offered in evidence by plaintiff, but was excluded by the court on the ground that it was not rebuttal, to which ruling an exception was duly taken. The exclusion of the memorandum constituted reversible error, as it clearly tended to im For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. (182 N.Y.S.) peach the testimony of defendant's witness that the pieces returned by plaintiff to defendant were perfect. In Ankersmit v. Tuch, 114 N. Y. 51, 20 N. E. 819, the Court of Appeals, in reversing a judgment in favor of defendant on the ground that the evidence offered in rebuttal was improperly excluded, said: "The court at General Term held that the statement made to Bon and others was competent as evidence in chief, and that the plaintiffs, having rested without introducing it, left its subsequent admission discretionary with the trial court, and, consequently, that the exception to its exclusion was not well taken. * * But a party has the right to impeach or discredit the testimony of an opponent, and such evidence is always competent. He may contradict the testimony of a witness as to any matters upon which he has been called to give evidence in chief, provided it is not collateral to the issue." Again, in Winchell v. Winchell, 100 N. Y. 159, 2 N. E. 897, the court, in passing upon the admissibility in rebuttal of like evidence, said: "The evidence was clearly admissible in rebuttal for the purpose of contradicting the testimony of the defendant to the effect that no payment had been made and impeaching his credibility." See, also, Crowley v. See, 63 Misc. Rep. 347, 117 N. Y. Supp. 101. The judgment must be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur. FISCHER v. INTERNATIONAL RY. CO. (Supreme Court, Special Term, Erie County. June 2, 1920.) Negligence 90-Borrower's contributory negligence not imputable to lender of property damaged through negligence of third party. Where automobile was lent for use in borrower's business, and was damaged through negligence of a street railway company, borrower's own negligence contributing to injuries, owner of car, on account of principle of liability of joint tort-feasors, can nevertheless recover for damage from the street railway company; the negligence of the borrower not being imputed to him. Appeal from City Court of Buffalo. Action by George F. Fischer against the International Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Frederick R. Twelvetrees, of Cohoes, for appellant. WHEELER, J. The record shows the plaintiff was the owner of an automobile, which he permitted one Dritsan to use in Dritsan's own business. While Dritsan was running this automobile on business of his own, he had a collision with a street car of the defendant, in which the automobile was damaged. Fischer, the owner of the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes machine, sued the defendant for the damages sustained by the automobile. The trial court found as matter of fact that both the defendant and Dritsan, who operated the machine, were guilty of negligence. The question presented to this court for review is whether the contributory negligence of Dritsan prevents a recovery. against the International Railway Company for its negligence. The contention of the railway company is that the negligence of Dritsan is imputable to Fischer the plaintiff. The question is an interesting one, in view of the conflicting decisions of the courts of various states. Dritsan was the bailee of the plaintiff, Fischer. In some jurisdictions it has been held that the bailee stands in the shoes of the bailor, and if the bailment is injured by the negligence of a third party, to which the negligence of the bailee contributes, there can be no recovery by the bailor against the third party. To this effect are the cases of Welty v. Ind., etc., R. Co., 105 Ind. 55, 4 N. E. 410; Moore v. Stetson, 96 Me. 197, 52 Atl. 767; Illinois Central R. Co. v. Sims, 77 Miss. 325, 27 South. 527, 49 L. R. A. 322; Puterbaugh v. Reasor, 9 Ohio St. 484; Forks Tp. v. King, 84 Pa. 239; Texas R. Co. v. Tankersley, 63 Tex. 57. On the other hand, plaintiff's counsel cites the following cases as holding the contrary doctrine, viz.: New York, etc., R. R. Co. v. New Jersey Electric Railway Co., 60 N. J. Law, 338, 38 Atl. 828, 43 L. R. A. 849, and cases cited in the opinion in that case; also Currie v. Consolidated Ry. Co., 81 Conn. 383, 71 Atl. 356; Gibson v. Bessemer & L. E. R. R. Co., 226 Pa. 198, 75 Atl. 194, 27 L. R. A. (N. S.) 689, 18 Ann. Cas. 535; Van Tile on Bailments and Carriers, § 128. Plaintiff's counsel also calls the court's attention to the line of cases in this state holding that, where the owner of a motor car permits its use by another exclusively for the borrower's benefit or pleasure, the owner is not responsible for the negligence of the borrower in its operation. Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443, L. R. A. 1917F, 363, Clawson v. Pierce-Arrow Motor Car Co., 182 App. Div. 172, 170 N. Y. Supp. 310, and many other decisions. We think the case now up for review must be decided on broad general principles. Dritsan was not in any sense the agent for the plaintiff. He was not engaged in the plaintiff's business at the time of the accident. As the borrower and bailee of the plaintiff's property, he owed the duty to the plaintiff to handle the machine with care, and if the machine was damaged by his negligence the bailee became responsible to the bailor for his acts. But the fact that the bailor had or has a cause of action against the bailee certainly ought not to deprive the plaintiff of a cause of action against a third party whose acts also contributed to the injury. To say that, where an injury is occasioned by the joint negligence of the bailee and a third party, the bailor must look to the bailee alone is to ignore the wellrecognized rule that joint tort-feasors are jointly and severally liable for the consequences of their torts. The injured party may sue both jointly, or each separately. The doctrine is so elemental that it is difficult to see how a different conclusion in this case could have been reached. As was said in (182 N.Y.S.) New York, etc., R. R. Co. v. New Jersey Electric Railway Co., 60 N. J. Law, 338, 38 Atl. 828, 43 L. R. A. 849: "In a contract of bailment of things, for hire, the bailor is not responsible to a third party for injuries occurring to such third party by reason of the negligent use of the thing hired by the bailee, nor for the negligence of the servants of the bailee in respect thereto. The bailee does not stand in the place of the bailor, nor represent him in such relation as to render the bailor liable for such injuries, nor are the servants of the bailee the servants of the bailor, or in any sense acting for him, and the contract of bailment is in so far entirely an independent one, and the liabilities of the bailor and bailee to third parties are essentially independent of each other." In Rockland Lake Trap Rock Co. v. Lehigh Valley R. R. Co., 115 App. Div. 628, 101 N. Y. Supp. 222, a scow lashed to the side of a tug, which was towing it, was injured in a collision with another tug owned by the defendant, and it was held that the owner of the injured tug was entitled to recover, notwithstanding the concurrent negligence of the towing tug. In the course of the opinion in that case Mr. Justice Woodward said: "It has been well said that there can be no such thing as imputable negligence, except in cases where that privity which exists in law between master and servant and principal and agent is found. In order that the negligence of one person be properly imputable to another, the one to whom it is imputed must stand in such a relation of privity to the negligent person that the maxim 'qui facit per alium, facit per se,' is directly applicable." It certainly would seem logical that, where the owner of property loaned is not liable to third parties for the negligence of the bailee, the converse of the proposition should obtain, and that such negligence, when contributory to the negligence of third parties, should not absolve the third parties from liability to the owner of property damaged. The appellant cites the case of Arctic Fire Insurance Co. v. Austin, 69 N. Y. 470, 25 Am. Rep. 221, as sustaining the contention of the defendant. There a cargo of grain was shipped by boat, and owing to negligence in the operation of another boat the cargo was damaged. There was evidence that the accident was occasioned in part by the negligence of the master of the boat carrying the grain, and the court held such contributory negligence a defense. That decision seems to have been based on the ground that, owing to the peculiar relation existing between the shipper and carrier (where the carrier practically insured safe delivery to the consignee) the carrier became the agent of the shipper. In the course of the opinion Judge Allen said: "The possession of the carrier is that of the merchant shipper; he is the bailee, and quasi the agent of the shipper. Whatever he does in the course of the service and bailment he does as the agent and representative of the owner, and, if so, all the consequences of the negligence of the carrier will be visited upon the owner of the freight to the extent of depriving him of any remedy over against a third party for losses to which the carrier, by his wrongful or negligent act, has contributed." Whatever may be claimed for the case of Arctic Fire Ins. Co. v. Austin, we think its application should be confined to the particular facts there presented, and not extended to a case like that now under consideration, where no possible agency can be claimed to exist. We are of the opinion that the judgment appealed from should be affirmed, with costs. So ordered. (192 App. Div. 350) ANDREW GULICK & CO., Inc., v. CYCLEMOTOR CORPORATION. (Supreme Court, Appellate Division, First Department. May 28, 1920.) 1. Principal and agent 41-Question whether seller to exclusive agent broke contract improperly submitted, because contract did not impose duty. Where a contract appointing plaintiff as sole agent to sell defendant's cyclemotors in a foreign country merely required defendant to ship the cyclemotors to some American port and furnish them free alongside boat, with such documents as were necessary to authorize plaintiff to take the goods and export them, if it chose, it was error to submit to the jury the question whether defendant broke the contract by failing to furnish an ocean bill of lading. 2. Principal and agent 33-Refusal of exclusive agent of manufacturer to accept shipment justifies rescission. Where the exclusive selling agent of cyclemotors refused two shipments, the seller was authorized to rescind. 3. Principal and agent 33-Refusal of exclusive agent of manufacturer to accept draft for price justifies rescission. Where a seller shipped goods, which exclusive selling agent intended to export under an inland bill of lading accompanied by a sight draft, as it was authorized to do under the contract, the agent's refusal to accept the draft authorized the seller to cancel the contract.. 4. Principal and agent 41-Agent making default not entitled to recover profits, though he transferred agency. Where plaintiff was appointed sole agent for the sale of defendant's cyclemotors in a foreign country, and transferred such agency to a third party under an agreement entitling him to a specified profit on each cyclemotor sold, but plaintiff made default under its contract with defendant by refusing shipments and refusing to accept a draft for the price, no liability survived to it for such profit, notwithstanding the attempted transfer of the agency. Appeal from Trial Term, New York County. Action by Andrew Gulick & Co., Incorporated, against the Cyclemotor Corporation. From a judgment in favor of plaintiff on a verdict for $2,280, and from an order denying a new trial, defendant appeals. Reversed, and complaint dismissed. Argued before CLARKE, P. J., and DOWLING, SMITH, MERRELL, and GREENBAUM, JJ. Joseph M. Allen, of New York City, for appellant. Olcott, Bonynge, McManus & Ernst, of New York City (Terence J. McManus, of New York City, of counsel, and Walter A. Lynch, of New York City, on the brief), for respondent. SMITH, J. The vacillating conduct of both parties in this action has very much confused the issue. Defendant made a contract with plaintiff, appointing the plaintiff the sole agent in Norway to sell cycle For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |
