Robison v. Bass

This is a motion to set aside a verdict directed in favor of the defendant, subject to the opinion of the court, under section 1185 of the Code of Civil Procedure. The action is‘for goods sold and delivered, and the defense interposed is substantially that the plaintiffs, prior to the commencement of this action, sued the agent of the defendant with knowledge of his agency at the time and obtained judgment against him. This judgment remains unpaid.

The facts presented in this case, in an action for goods sold and delivered, where the principles of law applicable between principal and agent and undisclosed principal usually arise, are out of the ordinary. The defendant, Lena Bass, was the wife of one Edward Bass. Defendant was the owner of the factory at which the merchandise was delivered, and it was used in her business. This business was conducted by her husband as her manager, and he negotiated the various .purchases from plaintiffs. In the beginning merchandise was purchased on the husband’s credit, although, the business, from the time of all the deliveries of merchandise in suit, had been the property of the wife. Shortly before the ñrst bill of goods now in question was purchased, defendant’s husband told plaintiff/ salesman that the business stood in the name of the wife because there were judgments against the husband which he did not care to pay, and it is conceded that this fact was communicated to Mr. Louis Robison, one of the plaintiffs in this action. The account, however, was continued in the original form, and bills were charged to and paid by the husband. In ' November the plaintiffs demanded payment of their money from the husband, and, the bills remaining unpaid, they commenced an action against the husband, in which action he failed to appear and a judgment for the full amount was obtained. The plaintiffs now claim that:

“At the time of the commencement of this action, plaintiffs were misled by the entries in their own books, and were under the impression that the husband was the only responsible party.”

At the time that the action was commenced against the husband and proceeded with to judgment, the plaintiff testified that he had forgotten the information which his salesman had communicated to him, and that that information was not then in his mind, and I am-satisfied from the evidence of the truth of that statement. He testified further that it only recurred to him when, after execution was issued to the sheriff, the claim was made that the business belonged to the wife. The question now arises as to what legal principle governs the facts in this ease. If it be a case of a disclosed principal and credit was given exclusively to the agent, then plaintiff," having elected to pursue the agent, cannot maintain this action. If it be a case of a

[1] It is well settled beyond controversy in this state that a vendor cannot sue both the agent and the undisclosed principal when the principal is disclosed. As was said in the case of Tuthill v. Wilson, 90 N. Y. 423 —128:

“The vendor could, not enforce his claim against both the principal when ■discovered and the agents who contracted in his behalf. Granting that each was liable, both were not. * * * The vendor had a choice and was put to his election. * * * He has the right of election as to which of them he will hold responsible, but having once made an election he is bound by it.”

See, also, Cherrington v. Burchell, 147 App. Div. 16 , 131 N. Y. Supp. 631 ; Meeker v. Claghorn, 44 N. Y. 349 .

[2] The law is equally well settled that, where an election is made, with full knowledge of the facts, it is controlling, and that where the facts are known there is a duty to elect. Cherrington v. Burchell, supra.

[3] If either of these two principles controlled the facts in the case .at bar, the matter was properly disposed of by the direction of a verdict in defendant’s favor upon the trial, but I am now of the opinion that the real question involved is, Was exclusive credit given to the .agent? and that that question should have been submitted to the jury. As was said in the case of Maryland Coal Co. v. Edwards, 4 Hun, 432 , 435, a case somewhat similar to the one at bar:

“The statement to plaintiff's salesman that the coal was bought for the father of J. H. Edwards (one of the agents) was a disclosure of the principal. It indicated clearly who the principal was, and gave every opportunity of inquiry necessary to ascertain his full name, credit, and residence. The case does not, therefore, come strictly within the authorities touching undisclosed principals. It stands upon the question whether exclusive credit was .given to .the agents.”

So, while in the case at bar the evidence disclosed the fact that the husband was acting as the agent for his wife, having told plaintiffs’ salesman that fact, and he was subsequently sued for the debt and made no defense, I am of the opinion that, in view of the plaintiff’s ■sworn statement that when he sued" the husband he had forgotten the fact that he stated he was acting .as his wife’s agent, a question of fact was presented, as to whom credit was given, which should have, been .presented to the jury, and that plaintiff cannot as a matter of law be

Motion granted, without costs.