48 N.Y.S. 309 | N.Y. App. Div. | 1897
The plaintiff insists that the telegrams set forth in the complaint constituted a completed contract between the parties, whereby the defendant offered to sell to the plaintiff’s assignors one million centals (that is, Calcutta wheat bags of a certain capacity), and that such offer was accepted. The defendant insists that the telegrams do not support any such contention.
The inquiry of the plaintiff’s assignors contained in the first telegram is clear. It is, “At at what-price can you supply * * * June, July delivery, one million standard Calcutta wheat bags?” This inquiry was beyond doubt directed personally to the defendant.
It will also be noted that in his telegram the defendant requested an answer by five p. m. The only purpose of requiring that answer was to have the contract completed. There was no one suggested to whom the plaintiff’s assignors could direct their answer except to the defendant, and it was- entirely immaterial from whom the bags were obtained, provided they were of the proper standard; but as the bags were undoubtedly to come from Calcutta, the price and time of shipment from that place were important. To hold that these telegrams did not make a contract would necessarily assume that the reply which the defendant required was with no intention of binding either himself or any one else, because there is no suggestion of a dealing between the plaintiff’s assignors and any person except the defendant. The latter does not intimate that he was acting in a representative capacity or for an undisclosed principal, nor do we think any such inference is to be drawn from the fact that in the confirmatory telegram to the defendant, accepting the latter’s
If, 'however, the defendant was in fact acting as agent, we think he was still liable for failure to disclose the name of his principal. The general rule is that one who acts as agent for another, in order to release himself from liability, should disclose his principal, because otherwise it would be presumed that he intended to bind himself personally. In other words, it is not the duty of one dealing with an agent to find out whether he is acting in the transaction in that .capacity or as principal, but it is the duty of the agent, if he desires to relieve himself from personal liability, to disclose the name of his principal in the transaction.
The conclusion at which we have arrived, therefore, is that there was a direct inquiry to the defendant personally,, as to the price at which he would sell the bags; that in reply the- defendant proposed ' the terms upon which he would sell, and that the final telegram of the plaintiff’s assignors was an acceptance of the offer made and completed the contract. There is nothing in the language, “ Wire us confirming this and naming your correspondent in Calcutta, and instruct us regarding credit,” contained in this telegram, which in
The judgment should, therefore, he reversed, with costs, and the demurrer overruled, with costs, but with leave upon payment thereof to withdraw the demurrer and answer upon payment of costs in this court and court below.
Yah Bruht, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, hut with leave upon payment thereof to withdraw demurrer and answer on payment of costs in this court and in the court below.