Kayton & Mayer v. Barrett & Phillips — 10 N.Y. St. Rep. 444

Majority

p. 444

Kayton & Mayer v. Barrett & Phillips.

(New York Superior Court, General Term,

Filed, December 18, 1886.)

Headnote

1. Principal and agent—Undisclosed principal—When not liable.

Where an agent acts for an undisclosed principal, the third party on discovering the principal, may sue him and recover; provided that in the

p. 445

meantime the principal has not in good faith paid the agent, and provided that the credit has not been given to the agent as an agent. But there must be an agency which was unknown to plaintiff.

S. Same.

Where as in this case the plaintiffs refused to contract with defendants, but sold the goods to a party, who afterwards is shown to have been buying the goods for defendants; the plaintiffs not having given credit to the purchasing party as agent of defendants cannot recover as against them.

This case was tried before a judge and a jury. The judge, who presided at the trial, dismissed the complaint upon the evidence presented by the plaintiffs and directed that the exceptions be heard at the general term in the first instance, judgment in the meantime being suspended.

The action was brought to recover for goods sold and delivered to the defendants. The defendants denied the sale and delivery, and alleged that the goods were sold and delivered to a certain other person named Bishop.

Sullivan & Cromwell, for pl’ffs; Townsend, Dyett & Einstein, for def’ts.

This action was brought to recover from the defendants as the undisclosed principal. The evidence shows that the plaintiffs asked Bishop, the person, who as a matter of fact bought the goods, if he was buying for the defendants, and stated to him that if he was buying for the defendants, they would not sell the goods to them.

Bishop said that he was not buying for the defendants, but that he was buying for himself.

It was testified to on the trial, and, for the purposes of this appeal, it must be taken as the fact, that Bishop was buying the goods for the defendants.

Where an agent acts for an undisclosed principal, the third party in discovering the principal may sue him and recover. Meeker v. Claghorn, 44 N. Y., 351 .

Provided that in the meantime the principal has not in good faith paid the agent. Armstrong v. Stokes, 7 L. R.Q. B., 598; Rowan v. Buttman, 1 Daly, 412 .

And provided that the credit has not been given to the agent as agent. Meeker v. Claghorn, supsa; Coleman v. First Nat. Bank of Elmira, 53 N. Y., 388 .

But in each of these instances there must be an agency which was unknown to plaintiff. But in the case before the court, the plaintiffs refused to contract with the defendants.

There was no reciprocity of action between the plaintiffs and the defendants, but if the plaintiffs had refused to complete the contract, the defendants could have sued-them for damages. Humble v. Hunter, 12 Q. B., 311; Winchester v. Howard, 97 Mass., 303 ; Robson v. Drummond, 2 B. and Ad., 303.

p. 446

In this case plaintiffs did not give credit to the agent as agent, because they did not know that Bishop was acting: agent for defendants.

The plaintiffs’ exceptions are overruled and judgment is rendered for defendants, dismissing the complaint, with costs.

Sedgwick, P. J., and O’Gorman, J., concur.