43 N.Y.S. 477 | N.Y. App. Div. | 1897
Lead Opinion
The question here of the defendant’s liability is not a question of fact pure and simple. . It is rather a question as to the legal conclusion which should follow the inferences properly deducible from certain undisputed facts. It is quite true that the plaintiffs made no direct personal contract with the defendant for the purchase of the goods in question. They never in fact saw the defendant upon the subject of the sale. But it is equally true that they made no direct, personal contract with R. & H. Adams. They never saw any member of that firm upon this same subject. What is certain, however, is that they paid their money to the defendant for the goods in question. They paid it to him as the apparent principal in the transaction, not as the apparent agent for any one. Did he, in return for that money, correspondingly agree,- by fair implication, to deliver the goods to the plaintiffs ? That is the real question. The defendant admits that he received the money., but denies the corresponding agreement. He asserts, on the contrary, that it was not he, but the firm of R. & H. Adams, who agreed to deliver the goods. Undoubtedly, the firm of R. & H. Adams did so agree. That is, they so agreed with Loisson, who was acting under the plaintiffs’ instructions. But did the defendant as well so agree? If he did, the possible liability of R. & H. Adams as undisclosed principals cannot save him. The principal and the agent may both be liable. So may the principal and even a collateral contractor. The purchaser may hold the agent for failure to disclose his principal, or he may hold the principal when disclosed, or he -may, in either event, hold the collateral contractor, if the latter has made a distinct independent contract. Here it will be observed that the plaintiffs had no other knowledge of the real principal save that conveyed by the bill rendered. The only person whom they knew in the transaction prior to the receipt of this bill was Loisson. They
The learned referee proceeded upon an erroneous view of the law when he suggested that, if the plaintiffs did not know who the principals were, and had desired to he informed upon that subject, they could easily have obtained that information. The rule is the other way. It was: held in Cobb v. Knapp (71 N. Y. 348) that “.it is not-sufficient that the seller may have the means of ascertaining the name of the principal. * * * He must have actual knowledge.
There is no hardship in the rule of liability against agents. They always have ilt in their own power to relieve themselves, and when they do not, it ■ must be presumed that they intend to be liable.” The defendant’s private arrangements with R. .& H. Adams are quite unimportant. The one crucial fact is that when he authorized them to send out bills in his name as principal he jjermitted them to hold him out as such principal. The other crucial fact is
If this case depended solely upon the law of agency, the rules applicable thereto would not be questioned. No one doubts, for instance,. that an agent who holds himself out as principal is liable as such. The agent is personally liable if he contracted in his own name without disclosing his principal, (Cobb v. Knapp, supra.) Nor is the agent absolved by reason of the fact that lie had no beneficial interest in the contract. It was held in Ferris v. Kilmer (48 N. Y. 300) that one who authorizes another to use his name 'in the conducting, and carrying on of a business is liable for the debts incurred in such business although he has no beneficial interest 'therein. . Even where the vendor, or purchaser discloses the name of his principal, if he signs a written contract in his own name merely, which contract does not on its face show that he was acting as the agent of another, he will be personally bound thereby. (Mills v. Hunt, 20 Wend. 431.) Magee v. Atkinson (2 M. & W. 440) was there cited with approval, the court saying that that was a case “ where the broker had sent in a note of the sale to the purchaser in his own name,” and that “ it was held that evidence of a custom in Liverpool to send in brokers’ notes without disclosing the name of the principal could not be received for the purpose of protecting the broker from personal liability.”
These cases differ from the present in the fact .that there the agency was in the negotiations for the sale, while here it arose sub- ' sequen'tly. They are not, therefore, literally in point, but the principle enunciated covers the peculiar divergence in the case at ban But, even if one, as matter of fact, is originally neither the actual principal nor the actual agent; he may make himself liable as . principal by asserting his principalship and contracting with regard
There is nothing in the point that the proofs failed to substantiate the allegations of the plaintiffs’ complaint. They did substantiate these allegations, that is, they established the essential facts. It would have been bad .pleading to .aver the evidence of these facts. Here the plaintiffs averred that they purchased from the defendant, and the defendant sold to them, the goods in question. They substantiated this averment when they proved an agreement on the defendant’s part to deliver the goods to them in consideration of the purchase price. In. legal intendment that established a contract of sale.
The judgment should be reversed and a new trial ordered before a new referee to be appointed in the order entered hereon, with costs to the appellant to abide event.
Tan Brunt, P. J., and Williams, J.,. concurred; Rumsey and Patterson, JJ., dissented.
Dissenting Opinion
The sole question in this case is one of fact. It is whether the goods which were sold by Loisson to the plaintiffs in Kovember, 1895, were sold by the .firm of R. & H. Adams, or were sold by the defendant McLean. The plaintiffs alleged that they bought the goods of McLean and paid for them, and he did not deliver them,
■ The facts are substantially not disputed. It appears from the testimony of Mn Swift, one of the plaintiffs, that they were in business in Cleveland, Ohio; that they knew L. C. Loisson and that he had been for several years a salesman for the firm of R. & H. Adams, and that they knew it, and they had no knowledge or reason to believe that he was employed for anybody, else. As a matter of fact, it appears and is, not disputed in the case, that,Lois-son, during the .month of November, 1895, and before that, was a salesman for R. & H. Adams, and was not and never had been in the employ of McLean. In the prosecution of his business., Loisson wrote from Chicago to the plaintiffs, to Cleveland, proposing to sell them mosquito netting. That letter the plaintiffs did not produce. Blit- in reply to it, on the twenty-ninth of October, they -wrote to Loisson a letter which is'printed as an-exhibit, ordering the mosquito netting, the sale of which - is the subject of this action.- That order was sent by Loisson to R. & H. AdamSj by whom he was. employed, and was accepted by them and the order was entered on their books. By the "custom of business in the sale of mosquito netting, the bills are. sent as of the. first of April, and á discount is. made from the amount of it of six per cent if the bill is paid in ten days, or five per cent if the bill is paid in. thirty days, and a f urther discount of two per cent to the buyer for each month that elapses between the date of .payment for. the goods and the first of April. This custom of trade'apparently was known to the plaintiffs and. they desired tp take advantage of it.
Hp to this time the defendant McLean had not appeared at all in the transaction!, and nothing was known of him by the plaintiffs so-far as has been made to appear. > Indeed, at that time they seem to have been ignorant of his existence. H the transaction had stopped
A duplicate of the bill was sent to McLean, and the plaintiffs shortly after having received it sent, to McLean the amount which, according to their figures, was the' amount due on the bill, deducting the percentage and the discount for anticipation. McLean claimed that the discount was not correctly figured, and sent to the plaintiffs a telegram to that effect, signed by himself personally, asking for twenty-six dollars more, which they remitted to .him. These two checks were deposited by McLean to the credit of. his company, but, as was testified by several persons, and was not denied, were paid over to the firm of R. & H. Adams, after deducting his commissions for collection.
It was proven in the ease by several witnesses that' McLean had a contract with the firm of R. & H. Adams and other firms engaged ■ in the sale of mosquito nettings, by which he was to collect the bills for two per cent commission, and remit the proceeds, less his commissions, to the persons who sold the goods. This was not denied by anybody and there is no reason to doubt its truth.
It appears as an undisputed fact in the case that in the month of March the firm of R. & H. Adams failed. Upon learning of it Mr. Swift, one of the plaintiffs, immediately went to New York and went to. the place of business of R. & li. Adams to make inquiries about these goods. From there he went to McLean and had an interview with him, and after that this action was brought. What occurred in his interview with McLean has not been made to appear in the testimony. Mr. Swift does not claim that' even at
When the bill was sent, the transaction was complete. The plaintiffs had dealt with the agent of R. & H. Adams, believing him to be such; had ordered the goods from him ; the order had been remitted to his principals, and they had accepted it. That clearly'made .a contract between them and the Adamses. It is. quite true that the.bill was sent in the name of McLean, but this was done by the Adamses, and it was done for the purpose of enabling him to make the collections. If there had been no explanation of that fact, it would not have made him the seller of the goods which Adams had previously agreed to sell, and it was quite clear that he was not so regarded by the plaintiffs, because Mr. Swift says that when he wanted a delivery of the goods, after the failure of the Adamses, he went directly to their place of business to get it. There is not one word of testimony to contradict the statement that McLean was simply the agent to make these collections, nor is there anything to show that the plaintiffs believed, or had reason to believe, anything different. The evidence is overwhelming to sustain the referee in his findings of fact. The relation of McLean to this whole transaction is a natural one; it is undisputed; McLean was never relied upon by the plaintiffs as the seller of these goods; they did not, so far as appears, know of his existence until the bill was sent, and even then they did not look to him to deliver them.
' But it is said that the contract with the Adamses was transferred to McLean, and assumed by him when the bill was sent in his name, and the money received by hiuj. To this theory there are two.insuperable objections. - In the first place, no' such claim was ever made by the plaintiffs, either before the action was begun, or in the pleadings or upon the trial. It is rather a remarkable fact that the plaintiffs’ witness Swift carefully forbore to say what claim he made on McLean when he visited Mew York to get the delivery of the goods from the Adamses, just as he carefully forbore to say what was contained in the letter which lie, so fortunately for the plaintiffs,
Upon the evidence, and upon the pleadings, the referee could not find any differently from what he did, and the judgment entered upon his report should be affirmed.
Patterson, J., concurred.
Judgment reversed, with costs to appellant to abide event, and new trial ordered before another referee to be appointed on entry of order hereon.