
    The Nitro Powder Company, Appellant, v. Marx and Rawolle, Respondent.
    Third Department,
    December 28, 1911.
    Contract — principal and agent — undisclosed principal — privity — action on contract made in name of another.
    Where a contract involving no confidential relation between the parties is made by the agent of an undisclosed principal the principal himself may enforce it.
    ■ Where, however, plaintiff made a contract with certain brokers for the purchase of goods in such a way that it could compel performance by them in any event, and the brokers then contracted with defendant in them own name for the same goods, the plaintiff cannot hold defendant for a breach of its contract with the brokers.
    Plaintiff having elected to deal with the brokers by an independent contract with them in their own names, there was no privity between it and the defendant, from whom the brokers made their purchases to fulfill them contract with plaintiff.
    Kellogg and Betts, JJ., dissented, with opinion.
    Appeal by the plaintiff, The Nitro Powder Company, • from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 12th day of April, 1911, upon the decision of the court rendered after a trial at the Ulster Trial Term, the case having been taken from the jury by consent, dismissing the complaint upen the merits.
    
      Emanuel Metzger [Arthur C. Connelly of counsel], for the appellant.
    
      Black, Varian, Bigelow & Somers [Warren Bigelow of counsel], for the respondent.
   Per Curiam:

It seems, clear that the contract between the defendant' and the G-arrigues Company, if it in fact had been made by the Garrigues Company, as agent for the plaintiff, might be enforced by the plaintiff as an undisclosed principal. Its performance involved no confidential relation, such as is necessary to take the contract out of the general rule.

Plaintiff had a right either to purchase these goods through ■these brokers as its agents or to make a contract to purchase from these brokers,, leaving them with the .responsibility ©f sellers. Plaintiff elected, to. adopt the. latter course, as clearly appears from the contract made, Exhibits “0” and D.” Exhibit ‘ ‘ A, ” which is the contract between the brokers and the defendant, while1 signed by the Charles E. Gaiuigues Company, brokers, is made in behalf of the 'Charles- E". Garrigues Company,. and: the. acceptance is- signed- by the-CharlesE.. Garrigues Gompany notas' brokers:. Under-the- contract :a-a made between the plaintiff and the Charles E. Garrigues Company, plaintiff could compel performance bythe Charles FI Garrigues Company whether or not. the defendant, defaulted in. its contract with the Garrigues-Company. If the- Gmuiguea -Company were simply the agent of the plaintiff" to- make tbis'.-eomtraet,. it incurred no such liability. ' So that the- form of the contract made with the Garrigues Company,, whether ;as .agent" or as independent contractor, made a material difference in the rights .o£ the. parties between themselves;: and,, having ¡eJ-eetecLfo deal with the . 'Garrigues Company through an independent contract,, there can De no privity between the plaintiff and the defendant, from whom the Garrigues.-Company did in fact make its purchases, to fulfill its contract with, the plaintiff'. .The complaint was, therefore, properly dismissed and the judgment should be affirmed, with costs. ■ _

All concurred, except Kellogg, J., dissenting in memorándum. in which Betts, J..,. concurred..

Kellogg, J.

(dissenting):

. The Garrigues Company were brokers for the sale of nitro glycerine and other explosives. Their purchases were never for •their own use; they had dealt extensively with the defendant and had bought much glycerine from it, some of which to-defendant’s knowledge- was bought for-and' -shipped', tobheplaintiff.. Defendant allowed! the-company abroker’-s comna>Bsi©nion',a/Z"purcl(iases;. Usually the’ memoranda of purchase .indicated the- person for whom the1 brokers, were acting; .and. other times, usedi the Garrigues-name-or a fietitiousmaane- if. it was: desirable not.-to- make the identity of the purchaser known-.. Theevidemce is-conclusive that the" glycerine- in question was. "bought by the Garrigues Company for the plaintiff, and immediately after the contract was executed the defendant had knowledge of the fact and continued to fill the contract. The memorandum signed by the G-arrigues Company has the word “brokers ” attached to the signature,. thus indicating that it was acting as agent for an undisclosed principal. Thé mere fact that the Garrigues Company sent a memorandum to the plaintiff for its approval, in a letter which stated that the glycerine had "been bought for plaintiff’s account and “ duly accepted by us, with duplicate for your acceptance, ” cannot change the relations of the parties. Within the familiar rule of Nicoll v. Burke (78 N. Y. 580) and Milliken v. Western Union Telegraph Co. (110 id. 403), the plaintiff may recover upon the contract. Many times the weekly orders were not given, but subsequent orders were honored when given. By disregarding time the defendant had set the time running and could not thereafter require strict performance without some previous notice. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs .to the appellant to abide the event.

Betts, J., concurred.

Judgment affirmed, with costs.  