
    (27 Misc. Rep. 562.)
    WIEHLE v. SAFFOLD.
    (Supreme Court, Appellate Term.
    May 24, 1899.)
    1. Undisclosed Principal—Recovery on Contract of Agent.
    An undisclosed principal may sue on a contract entered into by his agent, although the person contracting supposed he was. dealing with the agent as principal.
    2. Contract for Personal Services of Agent.
    Where plaintiff, engaged in the upholstering business, sent her husband to solicit an order of defendant, who was unacquainted with him, and he failed to disclose his agency, saying that he was the man recommended to do the work, and he secured the order, the contract was not one for his personal service, and was not induced by bis skill or special knowledge, so as to preclude the undisclosed principal from recovering on the contract.
    Appeal from municipal court, borough of Manhattan, Third district.
    Action by Anna Wiehle against Evelyn Saffold. Judgment for defendant, and plaintiff appeals.
    Reversed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
    Henry Hoyt, for appellant.
    Ambroce H. Purdy, for respondent.
   LEVEETRITT, J.

The plaintiff, engaged in the upholstery busi-

ness, learned that the defendant desired to have certain curtains repaired, and sent her husband, Rheinhold Wiehle, who was in her employ, to solicit the order. He called at the latter residence, and introduced himself by presenting a card upon which appeared "A. Wiehle.” The defendant supposed this stood for his name, she being unacquainted either with him or the plaintiff. Rheinhold Wiehle did not disclose his agency, merely stating that he was the man recommended to do the work which he understood she required. The curtains were delivered to him, and taken to the plaintiff’s place of business. The work was performed, and the curtains were then returned. The defendant expressed satisfaction with the workmanship, and gave an additional order. Payment for the first order being demanded, it was refused, on the ground that the charges were excessive. Thereupon this suit was instituted for the value of the labor performed and materials furnished. The parties to this action never met. The justice dismissed the complaint, for the reason that it appeared that “the defendant intended and believed she was dealing with Rheinhold Wiehle, and not with the plaintiff; that the defendant has a right to determine with whom she will deal; and that if the plaintiff permits her husband, while engaged in the transaction of her business, to hold himself out as the principal, she is estopped from denying it, at the expense of a party who relies on such representation.” This was error. Under the circumstances disclosed, the plaintiff was entitled to maintain the action, and her rights were unaffected by the act of her husband, or by the fact that she remained unknown to the defendant. The rule has long been settled that where a contract, not under seal, is made with an agent, in his own name, for an undisclosed principal, whether he describes himself as agent or not, either may sue upoh it, and the principal may enforce in his own name any rights acquired by his agent in a course of dealing for him. Taintor v. Prendergast, 3 Hill, 72; Nicoll v. Burke, 78 N. Y. 580, at page 584; Ludwig v. Gillespie, 105 N. Y. 653, 11 N. E. 835. A different rule prevails in a case of a sealed instrument. Briggs v. Partridge, 64 N. Y. 357. The evidence in the case at bar does not warrant the conclusion that the contract was one for the personal service of Rheinhold Wiehle, nor that his learning, skill, or special knowledge were contracted for or induced the agreement. While, in such cases, as a party has the right to select with whom he will contract, and as it may be of importance who performs his work, the rule is that a stranger cannot be thrust upon him without his consent, no such special circumstances obtain in this case, and the undisclosed principal is not precluded from availing herself of her agent’s agreement. The judgment must he reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  