
    HENRY E. P. ADAMSON, et al., Respondents, v. JAMES W. ELWELL, Apellant.
    
      Agency—undisclosed principal—execution of instrument by agent, when sufficient in form.
    
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    
      Decided February 5, 1883.
    Appeal by the defendant, from a judgment entered upon the report of Hon. Joseph S. Bosworth, referee to hear and determine.
    . The action was brought by the plaintiffs, as owners of the steamship “Egbert ” upon a charter-party for a voyage from New York to Havre, France.
    The principal question litigated on the trial was the validity of the charter-party as against the defendants. It was executed on behalf of defendants, by their agents, Charles T. Russell & Co. in Liverpool, while the vessel was lying in that port, in pursuance of cable authority from the defendants, which authority is referred to in the signature to the instrument.
    The referee wrote as follows : “ Cobb v. Knapp. (71 N. Y. 348), without reference to other authorities, is conclusive against the defendants, that not having disclosed their principles (if they had any), they are personally liable, if the charter party as executed, was authorized by the cablegram, and if it is executed in such form as to make the defendants parties to it as contracting parties. ... I think the charter is in form one that binds the defendants as principals. It is signed,
    “Adamson & Short, by their agents, Stoddart Bros.
    “By cable authority from J. W. Elwell & Co., of New York, C. T. Russell & Co., agents.”
    “This should be read as if the ‘cable authority’ were-annexed to the charter party. It would thus unmistakably appear that the defendants were included as the principals of the one part, who executed it by C. T. Russell & Co., as their agents. The instrument commences thus:
    ‘ Liverpool, 29th Aug., 1877. It is this day mutually agreed, between Messrs. Adamson & Short, procuring of the good ship or vessel called the “Egbert,” ... of the one part, and J. W. Elwell & Co., of New York, and C. T. Russell & Co., of Liverpool, agents, merchants and charterers, of the other part.’ Assuming that this instrument should be read as if the character ‘&’ was not written between the names of the defendants and the names of C. T. Russell & Co., then a very natural construction of it would be that id states ‘ J. W. Elwell &Co.’ to be the party ‘ of the other part,’ and C. T. Russell & Co. to be acting as their agents. If it is to be read with the character. ‘ & ’ in it, then it describes the party of the second or ‘ other part ’ to be J. W. Elwell & Go., and C. T. Russell & Co., agents. Even thus read, it is not a forced construction to regard the word ‘ agents ’ as applying only to C. T. Russell & Co. They signed as ‘agents’ of J. W. Elwell & Co., by virtue of authority to do so, conferred on them by cablegram from J. W. Elwell & Co. The words ’■merchant ’ and ‘ charterer1 are printed on the blank form here used. The blank form thus used being filled up and leaving these printed words in it, would describe any charterer as ‘ merchant ’ and ‘ charterer,’ whatever his occupation might be. If it can be held that C. T. Russell & Co-have so executed the charter party as to make them joint principals with the defendants as charterers, the objection appears on the face of the complaint, as a copy of the instrument is made part of it. The omission to demur to the complaint waives such a defect of parties. Code, §§ 488 and 498, 499.”
    
      Benedict Taft & Benedict, for appellants.
    
      James K. Hill, Wing & Shoudy, for respondents.
   Per Curiam.

—Judgment affirmed, with costs, upon opinion of referee.  