Warson Construction Co. v. Schlussel

Greenblott and Herlihy, JJ.,

dissent and vote to affirm in. the following memorandum by Greenblott, J. Greenblott, J. (dissenting). The question presented on this appeal is whether the jury’s verdict in favor of the plaintiff was supported by the evidence. In our view, a fact question was presented which could properly have been resolved by the jury in plaintiff’s favor. There was ample evidence to support the jury’s finding that Adler acted as agent for defendant Leonard Schlussel in Schlussel’s personal capacity. On Schlussel’s direct testimony, he conceded that Adler was his agent in dealing with the plaintiff. Therefore, the sole remaining question was as to what capacity Schlussel was dealing in—either in his personal capacity or as an officer of Evans Gardens, Inc. In response to the question posed to him by plaintiff’s attorney, "did you authorize him [Adler] to hire people to do carpentry for you?” ’ Schlussel replied: "In the name of Evan Gardens I asked Mr. Adler to go to the job site to see what work had to be performed to finish these buildings. He in turn reported back and told me there was skirting that was required, some insulation, the anchoring of the buildings, the leveling of the buildings, and based on that, I asked him to go out and get me an estimate of what that work was worth.” Thus, there is a statement in the record that Schlussel asked Adler to "go out and get me an estimate of what that work was worth.” (Emphasis supplied.) This indicates that Schlussel authorized Adler to work for him in his individual capacity. Furthermore, Schlussel referred to "Evan Gardens” and not "Evans Gardens, Inc.”. There is additional evidence in the record indicating that Schlussel was dealing in his individual capacity. Exhibits Nos. 8 and 9 were two checks, each in the amount of $1,000 and signed by Schlussel individually, made out to plaintiff’s predecessor to cover work on the job site. Because of this evidence, we are of the view that the jury was presented with a question of fact which it could properly resolve in favor of the plaintiff. We would, therefore, affirm the jury verdict.