Ludwig v. Gillespie
| Citation | 105 N.Y. 653,11 N.E. 835 |
| Parties | LUDWIG v. GILLESPIE. |
| Decision Date | 19 April 1887 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from judgment of general term, superior court, city of New York, affirming judgment against defendant.
Wm. Hildreth Field, for appellant.
M. W. Divine, for respondent.
The action was to recover $22,251.60 as the price of certain bitumen theretofore sold and delivered by the plaintiff to the defendant. Besides a general denial, the answer set up that the bitumen was sold and delivered by the plaintiff, not on his own account, ‘but as known agent for the firm of Arles, Dufour & Co., his disclosed principals, under a special contract in writing, and without authority to receive the proceeds of such sales;’ and upon this defense the defendant, upon trial of the issues before a referee, asked a dismissal of the complaint. His request was denied, and judgment went against him, both upon the report of the referee and at the general term.
The principal point made in his behalf upon this appeal is that the action was improperly brought by the plaintiff in his own name. It appeared that the contract was negotiated by one Clarke, a broker, who in that character made and signed a writing which, so far as is material, was in these words: etc. A time for delivery was specified, and the price declared ‘payable 30 days from each delivery.’ This contract was assented to by both parties, and the referee finds that ‘there was no proof that the name of Arles, Dufour & Co. was disclosed or mentioned as the principal of the plaintiff in the negotiations for the sale, nor at any time before this contract had been executed and delivered;’ but he also finds that, at the time of making it, the ‘plaintiff was in fact the agent of Arles, Dufour & Co., of Marseilles, France, for the sale of imported goods,’ and that the bitumen was sold and delivered by him, not on his own account, but for and on account of Arles, Dufour & Co., and as their agent.
The evidence sustains these findings, and the case is thus brought within the well-established rule of law that when a contract not under seal is made with an agent in his own name, for an undisclosed principal, whether he describes himself to be an agent or not, either the agent or principal may sue upon it. Considerant v. Brisbane, 22 N. Y. 389;Schaefer v. Henkel, 75 N. Y....
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...Plaza Associates, 387 F.Supp. 849, 855 (S.D.N.Y. 1974); Shirai v. Blum, 239 N.Y. 172, 182, 146 N.E. 194 (1924); Ludwig v. Gillespie, 105 N.Y. 653, 11 N.E. 835 (1887); Considerant v. Brisbane, 22 N.Y. 389 (1860); Helman v. Dixon, 71 Misc.2d 1057, 338 N.Y.S.2d 139, 142-143 (Sup.Ct. Queens Co.......
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...principal, whether he describes himself to be an agent or not, either the agent or principal may sue upon it. Ludwig v. Gillespie, 105 N.Y. 653, 11 N.E. 835. the case of written contracts the right of action follows the legal title, and the party entitled to maintain an action upon a writte......
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...a writing is not essential to their validity.’ See, also, Coleman v. Bank, 53 N. Y. 393;Nicoll v. Burke, 78 N. Y. 580;Ludwig v. Gillespie, 105 N. Y. 653, 11 N. E. 835. In order to fully establish his counterclaim, it was necessary for the defendant to show that something was due upon said c......
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