62 N.Y.S. 582 | N.Y. App. Div. | 1900
Lead Opinion
The defendant McNally contracted by a written instrument not under seal with one Hale for certain building materials, to be used in the erection of a school building for the city of New York. In making the contract,.although Hale did not mention or refer to the plaintiff, he acted for it, which fact McNally at the time did not know. The materials, by different shipments, were delivered by the plaintiff to McNally, and in each instance a bill rendered direct to him.
The contract price for the materials delivered was $4,814, which sum, with the exception of one check for $150, McNally paid to Hale, or upon his orders. This sum Hale kept, with the exception of a small amount. The plaintiff demanded payment from McNally,
The complaint, in substance, alleged the foregoing facts. McNally, alone, interposed an answer, which was substantially a general denial of the allegations of the complaint, coupled with an affirmative allegation that the contract for the materials was with Hale and that he dealt with him as principal, and not as agent; that he had paid him the amount called for by the contract, and that at and prior to the time such payments were made, he had no knowledge that Hale represented the plaintiff, or that the plaintiff claimed to be the principal in the sale and delivery of the materials referred to.
The learned justice sitting at Special' Term held after the trial had before him, that McNally had the right to deal with Hale as principal until he had notice of a claim by the plaintiff and that such notice was not given until the 14th of December, 1897. At that time, the defendant had paid to Hale $2,450, and the plaintiff was entitled to recover only the difference between that sum and'the $4,814, the amount called for by the contract, and judgment was directed against the defendants for that sum. From this judgment all of the defendants have appealed.
The defendants McCarthy and Loonie having made default in pleading, were not in a position to appeal from the judgment, and, therefore, so much of the appeal as relates to them must be dismissed ; and as to the defendant McNally, we are entirely satisfied, after a careful consideration of the record, that the judgment is right and should be affirmed.
There is an abundance of evidence to sustain the finding that all payments made after the 14th of December, 1897, were made by McNally with knowledge of the plaintiff’s claim. On that day the plaintiff wrote McNally the following letter : •
“ Montgomery, Lycoming Co., Pa., Dec. 14¿/¿, 1897.
“ Harry McNally, Esq., New York, N. Y.:
u Dear Sir.— Won’t you please send. us a check for $1,000 or $1,500, on your account, by return mail ? At the present time we are*136 very much pressed for money and whatever you can send us we will consider it a special favor.
“ Hoping to hear from you by return mail, with a good check, we remain,
“ Y ours, truly,
“ HENDERSON, 'HULL & GO., Lim.”
The plaintiff, as before stated, at the time of each shipment of the materials (and there were somé seventeen or eighteen shipments in all) mailed a bill to McNally, and he did not deny that he received them. All he would say on that subject was that he did not personally get them, but that his carpenter, who had charge of the building, might have done so, But that he, or some one representing him, received the bills, or some of them, is apparent from what transpired at the trial. There the plaintiff’s .counsel requested the defendants’ counsel to produce the bills, and in response- the defendants’ counsel said “ These are what we have got ” — at the same time handing several bills to the plaintiff’s attorney, and stamped upon the face of each one of these bills, in red ink, was the statement, “No settlement will be alloAved unless made payable to the order, of Henderson, Hull & Co., Lim.”
It is not disputed that after the receipt'of the letter of December fourteenth McNally paid to Hale, or upon his orders, the amount for which judgment .was directed— $2,364 — and of this sum something like $1,100 was paid after the notice of lien was filed, and a portion of that after the commencement of this action.
After McNally had notice of the plaintiff’s claim, he had no right to make further payments to Hale, and the payment to him did not discharge his obligation to the plaintiff. The fact that the contract was made in Hale’s name, and- that the plaintiff was not mentioned or referred to in it, did not, after the receipt of such notice, change the legal rights of the parties or relieve McNally from dealing with the plaintiff- as principal.
One cannot obtain the property of another through the medium of a third party and escape paying for it on the ground that he dealt with the third party as principal and not as agent. This is elementary. The general rule is that an executory contract, in writing, not under seal, executed by an agent, and within the scope of his authority, may be enforced by the principal, although exe
The letter of December fourteenth, taken in connection with the other circumstances, was sufficient notice to McNally that the payment for the materials, under the contract, should be made to the plaintiff and not to Hale.
We have examined the other questions raised, but they do not seem to be of sufficient importance to require consideration here'.
It follows that the judgment must be affirmed" as to the defendant McNally, with costs, and the appeal dismissed as to the other two defendants, with costs.
Van Brunt, P. J., Barrett and Rumsey, JJ., concurred ; Ingraham, J., dissented.
Dissenting Opinion
I am unable to agree in the affirmance of this judgment. Hale made a contract with McNally to furnish him with the articles, to recover for which this action is brought, for the sum of $4,814. In making this proposal, there was no indication of any kind that Hale was acting for the plaintiff, or for any one else. The proposal was in' writing, and is as follows : “ Revising my estimate of the Trinity A Avenue School, I propose to furnish, according to plans and specifications, window frames,” etc.,- for $4,814, delivered.
McNally accepted Hale’s offer by letter, saying: “I hereby accept your estimate for the Trinity Avenue School building of forty-eight hundred and fourteen dollars ($4,814.00) for frames, * * * according to plans and specifications. Please put the same in Avorlc at once and have ready as called for.”
Here avbs a personal contract betAveen McNally and Hale, by which Hale agreed to furnish articles specified for a sum of money. When this contract was made Hale had. no agreement with the plaintiff, but over a month after the contract was made Hale wrote to the plaintiff as follows: Please quote net figure f. o. b. Harlem River for the enclosed list No. 833.”
On April first plaintiff wrote to Hale accepting Hale’s offer, saying : “We have decided to accept job 833 at $3,675.00. You will please send us prices at which to bill this, and also send us an acceptance to ns from Mr. McNally.”
It is quite evident that Hale,- in making this offer to McNally, did not make it as agent of the plaintiff. He made it as an individual offer, and the contract which was.made -between Hale and McNally was an individual contract of Hale’s by which he agreed to furnish McNally at a sum specified the articles described. To procure those articles Hale applied to the plaintiff, and the plaintiff agreed to furnish the articles to Hale at a price considerably less than that for which Hale had agreed to furnish them to McNally. Plaintiff requested Hale to procure from McNally an acceptance of the order, and from that it would, appear that the plaintiff understood that Hale had made the : contract with McNally. No such acceptance was given, but, on the contrary, McNally expressly refused to make any contract with the plaintiff, or. to deal with it in any way. Notwithstanding this the plaintiff went on and delivered the goods to McNally. The plaintiff, however, made no specific claim upon McNally that he was under any obligation to pay it any sum of money. Nor was there any contractual relations of any kind between the plaintiff and McNally, by which McNally became under any obligation to pay any sum of money to the plaintiff. There was no assignment of this contract between. Hale and McNally to the plaintiff. What the plaintiff agreed’ to do was to furnish Hale the goods which he (Hale) had contracted to furnish to McNally; and certainly at no time was McNally under any obligation to pay to the plaintiff any sum of money. He had refused to recognize it as a contractor; he had agreed to pay it no sum of money. The fact that it had furnished Hale with
I think the judgment should be reversed.
Judgment affirmed as to defendant McNally, with costs, and appeal dismissed as to other defendants, with costs.