102 N.Y.S. 109 | N.Y. App. Div. | 1907
The defendant Sewall appeals from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial in an action brought to recover damages for the breach of a contract, whereby it is claimed fille defendants agreed to pay the plaintiff the sum of two dollars for each Italian workman whom he should induce to emigrate to the Hawaiian Islands. It appeared that the defendants ,were engaged in a general shipping and commission business and were the representatives in this country of. the Hawaiian Sugar Planters’ Association, an unincorporated association composed of the sugar planters of the Hawaiian Islands, who were attempting to obtain laborers for their plantations. The plaintiff was first employed in connection with the enterprise by another agent of said association to accompany as surgeon to San Francisco a body of Porto Rican emigrants; thereafter he met the defendants and was employed at a salary of $300 per month and expenses to aid in encouraging Italians employed on the sugar plantations of Louisiana and Porto Ricans to emigrate to Hawaii. In October, 1901, the contract in suit was made by which instead of a" monthly salary the plaintiff was to receive the per capita compensation stated supra. The plaintiff’s efforts under the latter employment began in December, 1901. After at least one expedition that had been arranged for had failed for want of emigrants, another was scheduled to start January 21, 1902, and arrangements
The plaintiff claimed that the contract of October," 1901, was made with the defendants as principals, whereas the defendants, not disputing the making of the contract, claimed that to the knowledge of the plaintiff it was made by the defendants as agents for the said Hawaiian Sugar Planters’ Association. The correspondence between the plaintiff and said association extending over the period of the plaintiff’s employment upon a salary tends strongly to prove that the plaintiff fully understood that said association was the principal. The court charged at the request of the plaintiff’s counsel as follows:
“ That persons though contracting only as agents are generally liable where there is no responsible principal to resort to.”
“ That if the jury believe that the Hawaiian Sugar Planters’ Association was not legally competent to make a contract or liable to be sued, and that the defendant knew that fact and the plaintiff did not, then the defendants here would be liable as principals.”
The exception to this charge presents reversible error. While it may be true that tire charge in the abstract was correct, "it had no application to the case at bar and could have served no other purpose than to mislead the jury and possibly cause them to base their verdict upon an issue that was not in the case. There was no question in this case of an agent contracting for a sham principal. It was undisputed that the Hawaiian Sugar Planters’ Association actually existed and was composed of individuals capable of contracting and of being "sued. The mere fact that they resided in the Hawaiian Islands did not prevent their being tana fide principals, nor did the fact that they were organized as an association. It may be that in an action against the members of the association the
The judgment and order should be reversed and a new trial granted, with costs to abide the event.
Hibsohbebg, P. J., Jenks, Hookeb and Gaynob, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.