
    Abraham Mogulewsky, Respondent, v. William F. Rohrig, Appellant.
    
      Contract under seal — a person signing it as agent may by independent oral agreement malee himself liable thereunder — when a condition that payment is to be made when a loan is made does not bar an action.
    
    A person whose name does not appear in a contract under seal as a party, and who signs it in the name of the principal by him as her attorney in fact, cannot be held liable thereon. He may, however, by an independent oral statement that he had simply used the name of another person because he was in bankruptcy, that he was the owner of the building to be built, that he was responsible and would pay -the other party, render himself liable to perform the written contract.
    Where a building contract provides that the last payment shall be made when a permanent loan is placed upon the building, the owner cannot, in an action brought by the contractor to recover such last payment, avail himself of the objection that as the permanent loan has not been obtained the last payment is not yet payable, when it appears that the owner is solely at fault for not having obtained the loan and has permitted the premises to be sold under foreclosure.
    Appeal by the defendant, William F. Rohrig, from a judgment of the Municipal Court, of the city of Hew York, borough of The Bronx, in favor of the plaintiff, entered, on the 21st day of May, 1904, upon the decision of the court.
    
      J. Power Donellan, for the appellant.
    
      Louis B. Boudin, for the respondent.
   Willard Bartlett, J.:

This suit was brought to recover a ■ balance claimed for work, labor and services performed and materials furnished in the construction of a building. Such construction was provided for in a written contract under seal, executed by the firm of Gordon & Koslowitzky on the one part, and “ Katie Behrens pr William F. Rohrig, Attorney in fact,” on the other. The contract described W. F. Rohrig as superintendent, and required the work to be done to his satisfaction. . The plaintiff has succeeded by assignment to the rights of Gordon &' Koslowitzky. It will be observed that in this action he is seeking to' enforce their claim, not against Katie Behrens, but ágainst William F. Rohrig, whose name does not appear in the contract as á party, and the principal question presented upon this appeal is whether the proof establishes any liability against William F, Rohrig. ' f

It is clear that he could not be held liable if the plaintiff’s cause' of action depended alone upon the contract. But it does not. Abraham Gordon, a member of the firm which did the work, testified that when the first payment fell due on the job Mr. Rohrig told him in substance that he had used Katie Behrens’ name in 4he. transaction merely because he himself was in bankruptcy; that he was the owner of the building and was. responsible for everything ; that- they would get all their money and everything would be all right, and that he directed them to go ahead with their work and said that he would pay them for it. This evidence, which was not contradicted, justified the Municipal Court judge in "finding that Mr. Rohrig, as principal, entered into an independent oral contract with Gordon & Koslowitzky for the conduct of .the work.to completion upon the terms specified in the Behrens agreement. I do not see why it was not competent for him to do this. The oral contract Was executed by the firm, and Mr. Rohrig thereupon becadie obligated to pay the agreed amount. "

The last ,payment was to be made when a permanent loan was placed upon the building, and as no such loan was obtained, the appellant insists that the balance is not yet payable. This objection is not available to the owner, who is solely at fault for not having obtained such loan, and has permitted tlie premises to be sold under foreclosure. ,

The judgment should be affirmed.

Present — Hieschberg, P. J., Bartlett, Woodward and Hooker, JJ.

Judgment of the Municipal Court unanimously affirmed, with costs.  