Majority
p. 366John Mahoney, Resp’t, v. Alexander T. Kent, App’lt. (New York Common Pleas, General Term, Filed April 2, 1894.)
Headnote
1. Appeal—Evidence.The determination of the court below, upon conflicting evidence, will not be reviewed on appeal.
8. Pbinoipal and agent—Undisclosed.
An agent, who fails to disclose his principal, is liable personally to the party with whom he contracts.
3. Same—Exemption.
Actual knowledge, on part of creditor, is necessary to relieve agent from, such liability.
Appeal from a judgment of the district court in the city of New York for the second judicial district rendered by the justice' of the first judicial district court, as acting justice for the second judicial district, without a jury, in favor of the plaintiff. Action for services and disbursements.
George Edward Kent, for app’lt; James J. Walsh, for resp’t.
That the plaintiff was employed by the defendant and that the services in question were rendered during the period for which compensation is claimed, is not disputed; nor is it contradicted that the disbursements which are sought to be recovered, were reasonable and were made in the course of the plaintiff’s duties. As to whether or not an agreement existed, whereby the defendant charged himself with the repayment of these disbursements, and as to the amount agreed upon as compensation for the plaintiff’s services during the week for which compensation is here claimed, there is a direct conflict of fact upon which a finding either way might have been made, but that the determination below upon such evidence will not be
p. 367
reviewed upon appeal is the well settled rule of this court. It is contended, however, that this action should have been brought against the “Sporting World Go.” of which the defendant is president, and in which capacity it is claimed that the agreement with the plaintiff was entered into by him. There is no evidence that the plaintiff was employed under any representations as to the agency of the defendant and the justice properly decided the motion to dismiss the complaint upon this ground. It is elementary that an agent who fails to disclose his principal is liable personally to the party with whom he contracts. Mills v. Hunt, 20 Wend. 431 . Again it is urged that the plaintiff could well have discovered the existance of the defendant’s principal from a perusal of a certain portion of the newspaper upon which he was employed, but it is not sufficient that the true principal might have been discovered by the party contracting with the agent; actual knowledge is necessary, Cobb v. Knapp, 71 N. Y. 348 , 352, and the evidence fails to show any such knowledge on the part of the plaintiff in this case. In the case last cited the court say: “ There is no hardship in the rule of liability against agents. They always have it in their own power to relieve themselves, and when they do not it must be presumed that they intend to be liable.” The recovery is fully supported by the evidence, and no error appearing from the record, the judgment should be affirmed, with costs. All concur.
Cases cited
- Mills v. Hunt 20 Wend. 431 p. 367
- Cobb v. Knapp 71 N. Y. 348 at 352 p. 367