140 N.Y.S. 392 | N.Y. App. Term. | 1913
This action was brought to recover for work, labor, and services alleged to have been rendered by the plaintiff and by plaintiff’s assignor. The defendant by its answer admitted the two
“The doctrine of an election in its general application is unsuitable and harsh, and it should not be applied to an action brought upon a contract made by an agent, without disclosing his principal, until the debt has been satisfied by one or the other.”
Plaintiff’s assignor testified that these papers were dictated to him by the supposed partner of the agent Barker, one Selig, and that he sent the bill "with plaintiff’s consent; but, whether or not the plaintiff or his assignor knowingly signed these instruments, they prove nothing but that the plaintiff and his assignor knew of the existence of the Melrose Iron Company and did some work, not necessarily the work sued for here, for it, and therefore do not prove that the Melrose Iron Company was the undisclosed principal with reference to the work sued on in this action.
The judgment therefore must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.