
    Solomon Ranger, Suing on his Own Behalf and on Behalf of all Other Bondholders of the Tennessee Central Railroad Company, Respondent, v. Ernst Thalmann and Richard Limburger, Composing the Firm of Ladenburg, Thalmann & Company, Appellants.
    
      Contract of purchase — when executed by an agent of an undisclosed principal, by the payment of cash■ and the giving of a note signed by the agent in his own name, recourse cannot be had against the principal.
    
    One Godfrey purchased the property of the Tennessee Central Railroad Company at a sale had under a judgment of the Court of Chancery of the-State of Tennessee, paying, in accordance with the terms of salé, §2,000 in cash and giving his promissory notes signed by him individually for the balance of the purchase price. ■ The sale was confirmed by the Tennessee court, and, pur-, suant to the decree of confirmation, the special commissioner in chancery conveyed the railroad property to Godfrey individually. Godfrey'having failed to pay the promissory -notes given by him, the special commissioner resold the railroad property for less than the amount of Godfrey’s bid. The special commissioner then brought a suit against Godfrey upon the promissory notes and obtained judgment therein, but did not succeed in collecting the same.
    In' an action thereafter brought on behalf of the bondholders of the railroad' company against the firm of Ladenburg, Thalmann & Co. to recover the unpaid balance of the purchase price, the complaint alleged that, in purchasing the . railroad property, Godfrey acted as the agent of the firm of Ladenburg, Thalmann & Co., and that at the .time the master in chancery brought the action against Godfrey he was unaware of the relationship existing between Godfrey and the firm in question.
    
      KM, that, assuming the defendant firm to have been the undisclosed principal of Godfrey and that the action of the special master in suing Godfrey did not operate as. an election which would estop the plaintiffs from pursuing the defendant firm, the latter could not be held liable upon the original contract of sale inasmuch as such contract of sale had been completely executed in a manner satisfactory to the vendor; that the defendant firm could not be held liable upon the promissory notes given by Godfrey, as an undisclosed principal is not liable upon a note given by the agent in the agent’s name.
    Appeal by the defendants, Ernst Thalmann and another,, compos^ ing the firm of Ladenburg, Thalmann & Company, from an inter, looutory 3 udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the plaintiff’s amended complaint.
    It appears that upon Godfrey’s failure to complete his purchase of the railroad property referred to in the opinion, the property was resold by the special commissioner for less than the amount of Godfrey’s bid; that subsequently the special'commissioner sued Godfrey upon the promissory notes given by him and obtained judgment thereon, but did not succeed in collecting the same.
    
      Edwin O. Hoyt, for the appellants.
    
      Thomas JD.. Adams, for- the respondent.
   Ingraham, J.:

Upon an appeal from a judgment which overruled a demurrer to the original complaint in this action (65 App. DiV. 5), we held that no cause of action was alleged. The plaintiff lias served an amended complaint, which alleges that Godfrey, who purchased the property of the Tennessee Central Railroad Company at a sale under a judgment of the Chancery Court of the State of Tennessee for the sum of $20,000, and received a conveyance thereof from the special master under the decree of the said court, was the duly authorized agent of the defendants; that in making the bid for the property and paying the sum of $2,000 in cash, and in making and delivering the promissory notes for the balance of the purchase money, Godfrey acted for and on behalf .of the defendants and as" their agent, with full authority from the said firm to do all that-he thereafter did in connection with the purchase of the. property, including the. payment of $2,000 on account of said purchase and the giving of the promissory notes for the balance of thepurchase money; that prior to said sale there was an agreement entered into between the defendants and Godfrey whereby said firm agreed that if Godfrey Would purchase for them all the property of the Tennessee Central Railroad Company, they would pay whatever cash was necessary to be paid upon said purchase being completed, and the balance of the purchase, price upon the terms of' sale that were required ■upon .the sale ol said" property; and any and" all disbursements incurred in connection with- said purchase and aiiy and all expenses -and' disbursements incurred in connection with said property- after its purchase; that Godfrey agreed with said firm that he would, upon the sale, purchase on their behalf and for them all the property of the said Tennessee Central Railroad Company, provided they would pay the cash which was necessary to be paid under the terms of said sale, and the balance of the purchase price upon the terms of sale under which said property was sold, and all other expenses and disbursements incurred in purchasing at said sale and in the caring for said property after purchase; that after the making of the said agreement and in' compliance therewith, Godfrey purchased for the defendants all of the property for the sum of $20,000 cash, and that defendants furnished Godfrey with the sum of $2,000, which was paid as a part of the purchase-price in cash, and paid Godfrey all the disbursements and expenses incurred in connection with said purchase, and after said purchase had been consummated paid all disbursements and expenses incurred in connection with the property so ¡mrchased ; that defendants accepted the property purchased by Godfrey for them as theirs solely and exclusively, and in all respects ratified all that Godfrey as their agent had done in connection with said purchase, and that Godfrey acquired no interest in or to the property of the said Tennessee Central Railroad Company which was purchased as aforesaid, or any part of the same, and that at no time prior to the return of the execution against Godfrey upon the suit instituted by the master of said' Court of Chancery in Tennessee for the balance of the purchase price was the said master in chancery aware of the fact that the said Godfrey was the agent of the defendants; nor did he have any knowledge or information whatever that the defendants were Godfrey’s principals, or that the defendants were the undisclosed principals of said Godfrey, or were in anywise connected with or interested in the purchase of the property of the said railroad company.

The court below overruled the demurrer upon the ground that, as the master in chancery had no knowledge of the defendants’ relation to the- transaction, there could be no election of remedies, so that the action to enforce the obligation of Godfrey was not a bar to their subsequently proceeding against the undisclosed principal, when the fact of the defendants’ relation to the transaction was discovered, based upon Kayton v. Barnett (116 N. Y. 625) and Brown v. Reiman (48 App. Div. 295).

The plaintiff’s claim to hold the defendants liable for the amount-that Godfrey agreed to pay upon the contract for the purchase of the- property cannot be sustained; as that contract has been fully executed., Assuming that Godfrey made the purchase as agent of the.defendants, although the fact of such agency was not disclosed to the master in chancery who made the sale, or t'o the bondholders whose right he was enforcing, when the master in chancery accepted Godfrey as. the purchaser and accepted his -note in part payment of. the purchase, price, and conveyed the property to him individually,, the conditions, had heen complied with, Godfrey had become the. owner of the property, and the original contract of purchase had been executed.- As was said in Tuthill v. Wilson (90 N. Y. 427):. If,- therefore, it was possible to treat the original contract as that of. Wilson, the latter fulfilled all its conditions. He paid all that was required . or demanded. Instead, of giving his own bond secured, by a mortgage, lie gave, and tiie vendor accepted as a discharge of. the contract obligation, the bond of - a third person, that of Horne.. If Wilson’s, own bond would not have been payment of his debt, his, delivery of Horne’s bond, accepted by the vendor,- was. The latter took as- a performance .of the. contract by Wilson, if the latter was-indeed the.contractor; the bond and mortgage of Horne, and thereby all right of action against the former upon, the contract, of purchase-was gone. It cannot alter the result that Horne also- was the- agent., in fact of Wilson and took the: title for his benefit, the latter paying the purchase, price. Under the statute, the title vested absolutely in Horne and no. trust resulted to Wilson. Even as between him and the grantee the latter was lawful and sole owner. But whatever the relation, between the two it does not alter the fact-that plaintiff took the .personal liability of Horne, fortified by a-mortgage upon the land, in discharge of the contract .obligation of the ■ purchaser whether such purchaser was McNish or Scott or Wilson.”1

The complaint, alleges that Godfrey, at a sale under the decree of the Court of Chancery of Tennessee,, bid at such sale the sum of $20,000. and paid on account of said bid the sum of $2,000 in cash, and gave his two. promissory notes, for the. remaining $18,00Q, payable to the order of Gillespie, master of said. Court of Chancery,, for the benefit of the bondholders, and, that after, such, sale a: final decree was entered in said action confirming the sale, a copy of. the decree being annexed to the complaint. By that decree it was adjudged that all the right, title and interest and claim of the defendants, Tennessee Central Railroad Company, the trustee and of all holders of bonds issued under the deed of trust, and of all other parties setting up, claiming or offering to claim any right, title or interest in and to the said property, be vested out of each and' all of them and vested in said purchaser, subject to the lien aforesaid for the unpaid purchase money, and in bar of the equity of redemption, the said real estate being therein specifically described, and further adjudging that the clerk and master will make, acknowledge for registration and deliver to the said Godfrey a deed conveying all the aforesaid described real, personal and mixed property, and the franchises, privileges and rights as aforesaid to him, or will give him a certified copy of this decree as a muniment of title at his election.. The purchase by Godfrey was ratified and confirmed. The., property sold vested in Godfrey absolutely, subject to a lien for the payment of the portion of the purchase-price money for which Godfrey had given his individual notes to the master. The sale was thus completed. The master had accepted the obligation of Godfrey as a compliance with the contract of sale and Godfrey became the owner of the property. The contract for the sale of the property was, therefore, completely executed, and no obligation of Godfrey or his undisclosed principal upon that original contract for the purchase of the property survived its complete execution. Godfrey, as the agent of these defendants, had agreed to purchase the property and to pay therefor $2,000 in cash and to give his promissory notes for the balance of the purchase money. Assuming this to be the defendants’ contract they had complied with it, had paid the $2,000 and had given Godfrey’s individual notes for the remainder of the purchase money. That had been accepted by the master of chancery as a completion of the contract for the purchase of the property and that contract for the purchase of the property was thus completely executed.

The remaining, question is whether the defendants can be held liable upon the notes; given by Godfrey as their agent. Assuming that the action of the master in chancery was not an election to treat Godfrey as a principal, so as to estop him from proceeding against' the defendants to recover the amount due on the notes, it seems to be well settled that an undisclosed principal cannot be held liable for a promissory note signed by an agent in his own name where, upon the face of the instrument, it is the obligation of the agent only. While it may be stated as a general rule that where a simple contract is made by a duly authorized agent without disclosing his principal, and the other contracting party afterwards discovers that the person with whom he- dealt is not the principal, he may abandon his right to look'to-the agent personally and resort to the principal, this rule does hot apply to a negotiable note or bill of exchange; for-there a person who is not a party to .the instrument cannot be charged upon proof that the ostensible party signed or indorsed as his agent, since persons dealing with negotiable contracts are presumed to take them on the credit of the parties whose names appear upon them. (1 Am. & Eng. Ency. of Law [2d ed.], 1139, 1141.) In Briggs v. Partridge (64 N. Y. 357) Judge Andrews, in delivering the opinion of the court, after stating the general rule that a principal may be charged Upon a written executory contract entered into by an agent in -his own name within his authority, though the name of the principal does not appear in the instrument, says: “ There is a well-recognized exception to the rule in the case of notes and bills of exchange, resting upon the law merchant. Persons dealing with negotiable instruments are presumed tq take them on the credit of the parties whose names appear upon them; arid a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent.”

- It would seem to follow, therefore, that as the original executory contract for the purchase of this property by Godfrey had been completed by the payment of the cash required to be paid, and the execution of Godfrey’s promissory notes for the balance of the purchase irioney, and this was accepted by the vendor as a completion* of the contract, the right to recover under the original contract wras lost' b'y the complete .execution of the. contract, accepted as satisfactory by the vendor; and as the defendants cannot be held liable as an undisclosed principal upon the promissory notes given by Godfrey, no cause of action is alleged against the defendants. -

- It follows that the judgment appealed from must be reversed, with Costs, and the demurrer, sustained, with costs; with leave to the. plaintiff to amend the complaint upon payment óf costs in this court and in the court below.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend complaint on payment of costs in this court and in the court below.  