
    CHARLES COBB, Plaintiff and Respondent, v. SAMUEL P. KNAPP, Defendant and Appellant.
    i. principal and agent.
    1. Agent pebsonally liable to vendob, when.
    
      (a.) When he does not disclose the name of his principal at the time of the sale, although the vendor knows that he is acting as agent in the purchase.
    1. Disclosure of prirusirpal, what not sufficient.
    
    Where the goods sold are used in the manufacture of an article, and at the time of the sale there is a direction given to deliver at a certain manufactory of the article, known by a certain appellation, e. g., Tower’s distillery, there is not a sufficient disclosure of the principal ; it not appearing that the vendor had any knowledge as to who was carrying on the business of the factory, and no disclosure being made at the time of the names of the parties carrying on the business.
    3. Vendob, bight of action in case of undisclosed peincipal.
    May on discovery of the principal, sue either the principal or the agent, or both.
    
    Before Curtis, Ch. J., and Speir, J.
    
      Decided January 2, 1877.
    The action was brought to recover the balance of the purchase price of a cargo of wheat .sold by the plaintiff in October, 1868. The defendant alleges that he was the agent of the firm of C. A. Steen & Co., and that the purchase was made for them, of which the plaintiff had notice. The plaintiff denies that he had such notice, but claims that the sale was made to the defendant, and the charge made against him on his books for the price of the wheat, and a bill of the goods sent to him for payment. It appears that after the sale .the defendant became temporarily insolvent, and the plaintiff brought a suit against the firm of C. A. Steen & Co., upon learning that one Jacob Goldsmith, a man of large means, was a partner of that firm. Upon ascertaining that Goldsmith was not a partner, that suit was abandoned, and this suit was instituted against the defendant.
    The defendant further claimed that on the plaintiff’s own evidence there was a sufficient disclosure of the principal. The evidence he relied on was this :
    “I remember the transaction with reference to this wheat; it was on ’Change. Grain at that time was sold by presenting samples of the bulk of that which you had to sell, in small boxes, with the number of bushels to be sold named on a card, and the description. On one occasion of that kind, I was showing about 3,000 bushels of Milwaukee Avheat, a portion of a boat-load, a part having already been sold. Mr. Knapp came along and priced it. I gave him the price. It did not result in a sale immediately. He went on and looked at other samples. He came back once or twice, or perhaps the third time, before the sale was completed, trying to cheapen, and finally it resulted.in a purchase. Then I asked him where it was to be delivered. Some purchases are made to be delivered near the Atlantic Dock Stores, and some to be delivered at the dock of the buyer. He gave the name of Tower’s distillery—a name I was perfectly familiar with. I knew where it was—on NewtOAvn creek, East river.”
    But plaintiff further testified: “Mr. Knapp said nothing about the firm of Steen & Co. at this time. Some days after this, the bill not being paid, I saw Mr. Knapp. He said he had been disappointed in money, but he would have it in a day or two; and then, for the first time, as my recollection suggests, I asked him who he bought that stuff for, and who it went to, and I am quite clear that was the first time I ever heard C. A. Steen or any one in connection with it. I never knew any of the parties he had named. I asked, ‘Who are Steen & Co.?’ ‘Well,’ he said, ‘they are a very rich distilling concern, which have bought the Tower’s distillery. They have expended $80,000 or $90,000 fixing it up, and they own it now.’ I asked who they were. He named one Steen, Donan, and Jacob Goldsmith. I asked who was Mr. Goldsmith. He said he was a partner of Mr. Bernheimer in the oil business. Said I, ‘ Do you know that Mr. Goldsmith is a partner in the concern ? ’ He said emphatically, ‘ I know it.’ Afterwards I again made inquiry who the firm was composed of. He emphatically named Goldsmith, and said, ‘You know Mr. Bernheimer—he is a partner of his in.the oil business, and he is worth half a million of dollars aside from that, and I know it.”
    He further testified that on a previous occasion he had received instructions from Mr. Knapp in respect to dealings with him as to whom he should charge with the goods he bought; and in answer to the question, “ What instructions did you receive?” he testified :
    “As near as I can remember his words, it occurred like this : ‘ Why have you sent this bill [meaning the bill of a previous purchase] to Mr. Koehler ? If you sent your bill to me you would have got your money three or four days earlier. I want, when you sell any thing to me, to have your bill come to me.’ He seemed to be quite out of patience about it—came to my office and gave Ms own check. It was a Mil I had rendered to his principal instead of to him. After that, I always charged to him directly, as I did in this case, except in one case, where I knew he was acting simply as an assistant to Mr. Wallace, the principal, who was equally active himself.”
    At the close of the testimony on both sides, defendant’s counsel moved for a dismissal of the complaint, which was denied, and he excepted. He then moved that the jury be directed to render a verdict for the defendant, which was denied, and he excepted.
    The cause then went to the jury, under a charge from the judge; and the jury rendered a verdict for the plaintiff.
    Defendant’s counsel then moved on the judge’s minutes that the verdict be set aside and a new trial granted, which was denied, and he excepted.
    An order denying the motion was entered.
    Thereafter judgment was entered on the verdict in favor of the plaintiff.
    From this judgment, and also from the order denying the motion for a new trial, defendant appeals.
    
      Raymond & Coursen, attorneys, and William A. Coursen, of counsel for appellant, urged, among other things:
    I. The conceded facts (or such as must be conceded on the plaintiff’s testimony) show that at the time of the contract of sale, the defendant did disclose the name (or to that effect) of his principal, and if the plaintiff at that time were satisfied with such disclosure, so far as it went, he could not at any subsequent time, and much less at the expiration of some five years, take exception to the want of definiteness (if it existed) respecting the individuality or names of persons, which the plaintiff must acknowledge, could and would have been made precisely clear if he (plaintiff) had expressed a wish to that effect, at the time of the contract of sale, to the defendant (See Waddell v. Mordecai, 3 Hill (South Carolina;] ; also Southwell v. Bowdich, in the English Court of Justice, Common Pleas Div., quoted in N. Y. Weekly Dig. of October 2, 1876, p. 187; Rathbone v. Bedlong, 15 Johns. 1).
    II. The motion to dismiss the complaint should have been granted. Both principal and agent cannot be sued on a contract made by the agent, even if made in his own name, for the benefit of his principal. Thus, even if the contract in this case were with defendant as agent for C. A. Steen & Co., an undisclosed principal, which defendant denies, the plaintiff could not maintain this suit when a previous suit on the same cause of action against the principals, C. A. Steen & Co., which had been commenced over five years previous to the commencement of this, was still pending on the day of the trial herein. The party with whom the contract is made may sue the agent as principal, or if he elect he may sue the real principal, but he cannot sue both (Story on Agency, 7th ed. 295, last editor’s note; Priestly v. Fernie, 3 Hurls. & Colt. 983 ; Borell v. Newell, 3 Daly, 233 ; Fitzsimmons v. Baxter, Id. 81).
    
      Lewis Johnston, attorney, and Albert Mathews, of counsel, for respondent, urged:
    I. The defendant, although known to be a broker, not having disclosed his principals at the time of the sale, and the credit on the sale of the goods having been given by the plaintiff exclusively to the defendant, and at the latter’s special request, and he having repeatedly promised to pay the amount, there can be no doubt of the defendant’s liability to pay for the goods (Meeker v. Claghorn, 44 N. Y. 349). 1. An agent purchasing goods for another is himself personally liable : (a.) Where he makes himself a party to the contract; by suffering or procuring the credit to be given to himself, or by promising to pay, or otherwise (Story on Agency, §§ 167, 169 ; Pentz v. Stanton, 10 Wend. 277; Maryland Coal Co. v. Edwards, 11 Sup’m Ct. [4 Hun] 432; Coleman v. Bank of Elmira, 53 N. Y. 393 ; Hovey v. Pitcher, 13 Missouri, 200). (b.) When he does not inform the vendor at time of the sale that he acts as agent, or otherwise disclose the fact of his agency, for some specific third person as hie principal (Story on Agency, § 266; Waring v. Mason, 18 Wend. 435; Raymond v. Eagle Mills, 2 Met. 319). (c.) Where the fact of agency is known to the vendor at the time of the sale ; but the name of the principal is unknown (Story on Agency, § 267; Thomson v. Davenport, 9 Barn. & Cress. 78 ; Mills v. Hunt, 20 Wend. 433; Morrison v. Currie, 4 Duer, 85). 2. If the vendor, knowing of the agency, elect at the time of the sale, to give credit to the agent, it seems he cannot afterwards charge the principal at all. The agent is always liable alone (Patterson v. Gandasequi, 15 East, 62 ; Westmoreland v. Davis, 1 Ala. [N. S.] 301). 3. In all these cases, “ to whom the credit was given,” is a question of fact for the jury; and their verdict, upon sufficient evidence, is conclusive (Huntington v. Brinckerhoff, 10 Wend. 278; Meeker v. Claghorn, 44 N. Y. 352 ; Coleman v. Bank of Elmira, 53 Id. 394; Raymond v. Eagle Mills, 2 Met. 325 ; Hovey v. Pitcher, 13 Missouri, 200).
    II. Upon discovering, after the sale, that the vendee acted as agent for a third person, the vendor may elect to hold either the agent or such third person responsible, and this choice is not conclusive until the agent has settled with his principal or the vendor has had satisfaction (Chitty on Contracts [11th Am. Ed.], 308 and note; Story on Agency, [8th Ed.], § 295, p. 383; Nelson v. Powell, 3 Dougl. 410, and note); 1. Legal proceedings (which are not prosecuted to judgment) against the principal or agent do not discharge or determine the liability of either (Wheaton on Agency, § 473 and note; Raymond v. Eagle Mills, 2 Met. 320-7; Curtis v. Williamson, 10 Q. B. [L. R.] 57; A. D. 1854, per Curiam [Oakley, Ch. J.], Nason v. Cockcroft, 3 Duer, 69, 366). 2. Weither do legal proceedings “prosecuted to judgment” against either principal or agent discharge the other, until the vendor has had satisfaction, (a.) The liability of the agent arises out of the actual contract, and therefore can only be discharged by satisfaction, or by an estoppel from some act of the vendor whereby it becomes inequitable to hold the agent longer liable. (5.) This precise point ivas decided in Philadelphia (Beymar v. Bonsal, 2 Weekly Notes of Cases, Phila. No. 16, p. 299 ; 79 Penn. ).
   By the Court.—Speir, J.

The sale and delivery of the wheat at the “Tower’s distillery,” or “Bliss-ville distillery,” meaning the same place on Wewtown creek, and the price agreed upon, are not disputed. The dispute is whether the plaintiff was given by the defendant when he told him the wheat was to be delivered at this distillery, the name of the firm of C. A. Steen & Co. as the • purchasers who were to be charged. .

There is no doubt that the defendant was a broker and acted as such in the purchase of this wheat. Wor is there any dispute that he acted as the broker of C. A. Steen & Co. in making the purchase, or that the delivery was made to them, or that they were Ms principals.

The only question to be determined is, whether the sale was made to the defendant in this action, or through him to the firm of C. A. Steen & Co., who were the owners at the time of the distillery where the wheat was delivered. There being no exceptions to evidence in the case or to the charge, and no request to the judge to rule upon any question of law, or to submit any particular question of fact to the jury, there can be no question of law open for review on this appeal.

On this single question of fact the jury found for the plaintiff. The exception to the refusal of the judge to dismiss the complaint or to direct a verdict for the defendant must be considered merely formal, unless the weight of evidence is clearly in favor of the defendants on this the only question for the determination of the jury.

The principles of law applicable to this case are elementary, and I do not think they can be disputed by counsel.

If the defendant, although known to be a broker, did not disclose his principals at the time of the sale and delivery of the wheat, and the credit at the time was given by the plaintiff, exclusively, to him, he promising to pay the amount, the defendant is liable for the price of the goods. The instances when an agent purchasing goods for another is himself liable, are when the fact that he is acting as agent is known to the vendor at the time of the sale, but the name of the principal is unknown and he does not disclose it; when the fact that he is acting as agent and the name of the principal are both unknown to the vendor at the time of the sale, and he does not disclose the fact that he is acting, and give some person as his principal; when he makes himself a party to the contract by causing the credit to be given to himself, or by promising to pay.

On the part of the defendant it is in evidence, that at the time he made this purchase, he not only made it on behalf of Steen & Co., but that he disclosed the fact to the plaintiff; that the wheat was to be sent to the mills owned by Steen & Co. ; that the credit was given to them, and that the plaintiff must look to them. This testimony seems to have been corroborated by the testimony of the witness Richardson.

On. the part of the plaintiff, it is in evidence that he had no knowledge of the firm of Steen & Co.; that they were not disclosed to him by the defendant as his principals for whom the purchase was made; and that the wheat was charged to the defendant exclusively; and that he promised to pay upon the presentation of the bill to him for payment.

The fact of the plaintiff’s instituting a suit against the principal, in which he failed to collect his debt, does not prevent his bringing an action against the agent, if he became liable for the payment at the time of the sale.

This court says in a similar case, “where an agent purchases goods without disclosing the name of his principal, he is not discharged from his liability which he thus incurs, by the subsequent discovery of the name of the principal. The only effect of the discovery is that the principal and agent are both liable, and the seller may at his election proceed against either or both” (Nason v. Cockcroft, 3 Duer, 366; Coleman v. Bank of Elmira, 53 N. Y. 394). The suit brought against Steen & Co. was discontinued, and there has been no satisfaction of the claim through that suit. The sum of $1,800 has been obtained, inferentiaily, from that firm on account of this sale, and the defendant on the trial had the benefit of this sum by a deduction from the claim to that extent.

The evidence in the case relating to the main question was conflicting and proper in all respects to be submitted to the jury for determination. Upon a review of the testimony on the trial and especially of the charge of the learned judge to the jury, I think there is no ground for reversing the judgment. It must be affirmed with costs.

Curtis, Ch. J., concurred.  