125 Misc. 114 | N.Y. App. Term. | 1925
Dissenting Opinion
(dissenting):
This action is brought by plaintiffs against the defendant to recover for work done upon some furniture. The order for the work was given by defendant’s wife prior to then marriage. It appears that judgment was recovered against Mrs. Baynes by the plaintiffs in June, 1922. Plaintiffs now sue Mr. Baynes as the disclosed principal, and the complaint was dismissed at the close of the plaintiffs’ case on the ground that upon the authority of Georgi v. Texas Co. (225 N. Y. 410) the suit against Mrs. Baynes was a conclusive election to hold her and not the disclosed principal. I do not understand it to be claimed by the defendant that Mrs. Baynes at the time of ordering these goods disclosed the fact that
There is also some claim that Mrs. Baynes, called as a witness by the plaintiffs, gave some testimony to the effect that she had at the outset disclosed her agency. As said above, I cannot find it, but if she did, it is conceded that she also gave testimony to the contrary effect, and plaintiffs denied that they had been apprised of that fact. Were that issue presented by competent evidence, however, the contradictions of plaintiffs’ witness, both by her own testimony and of theirs, would leave the actual fact as an issue to be determined by the jury. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158; Odell v. Webendorfer, 60 App. Div. 460.)
In my opinion, therefore, the judgment dismissing the complaint at the conclusion of the plaintiffs’ case was erroneous and should be reversed, with costs to appellant to abide the event.
Judgment affirmed.
Lead Opinion
We are of the opinion that the learned trial justice correctly ruled that the judgment obtained by plaintiffs against the defendant’s wife barred recovery against the husband. When the plaintiffs sued the wife, upon the theory that she was the principal, they were in possession of every available fact out of which any implication was drawable. They “ discovered ’’ nothing thereafter. They were as well able then to make an intelligent election as they could have been at any subsequent time. They deliberately pinned themselves down to a contention that the wife contracted on her individual account, and not as the agent of her husband. It is probable that they thought a judgment against the wife would be more easily realized upon than a judgment against the husband; but however that may be, they attempted unsuccessfully to collect under their judgment against the wife, and then, without a single new fact, or new discovery of an old fact, they brought this instant action against the husband. It seems to a majority of this court to be quite plain that under the well-established doctrine of election applicable to such cases as this, the plaintiffs conclusively staked their hopes and rested their chances upon the claim that the wife contracted as principal and not as agent. (Georgi v. Texas Co., 225 N. Y. 410, and cases there cited.)
Judgment affirmed, with costs.
Mullan and Cotillo, JJ., concur; Bijur. J., dissents in opinion,