Brady v. Nally

• Decision Date: 22 December 1896
• Citation: 45 N.E. 547,151 N.Y. 258
• Parties: BRADY v. NALLY.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 258

45 N.E. 547

BRADY

v.NALLY.

Court of Appeals of New York.

Dec. 22, 1896.

Appeal from superior court of New York City, general term.

Action by James H. Brady against Christopher Nally. From a judgment of the general term of the superior court of the city of New York (28 N. Y. Supp. 64) reversing a judgment in favor of defendant entered on the report of a referee, defendant appeals. Reversed.

J. Newton Fiero, for appellant.

C. N. Bovee, Jr., for respondent.

VANN, J.

The referee before whom this action was tried found in favor of the plaintiff upon the claim set forth in the complaint for labor performed and materials furnished, and allowed him the sum of $3,125 therefor. He found in favor of the defendant upon the third counterclaim set forth in the answer, for labor and materials, and allowed him therefor the sum of $5,139.68 including interest. He directed judgment in favor of the defendant for the difference between these sums, with costs. The plaintiff alone appealed, and the general term reversed the judgment, upon the ground that ‘the findings of fact do not sustain the allegations of the answer in respect of the counterclaim.’ While it is true that the evidence went far beyond the allegations of the answer, as it was received without any objection based upon that ground, and no motion was made to strike it out as not within the issues, the case comes under the rule that defects which, if pointed out during the trial, might have been obviated or avoided, are not available on appeal. Hofheimer v. Campbell, 59 N. Y. 269-272;Knapp v. Simon, 96 N. Y. 284-291;Fallon v. Lawler, 102 N. Y. 228-233, 6 N. E. 392;Wells v. Association, 120 N. Y. 630, 24 N. E. 276;Gillies v. Improvement Co., 147 N. Y. 420, 42 N. E. 196. If the proper objection had been made upon the trial, an amendment of the answer might have been allowed so as to enlarge the issues by embracing the items which the general term held were not covered by the pleadings. Under the circumstances it was the duty of that learned court to consider the facts as proved, rather than as alleged, and to regard the answer as amended by implied consent, so as to justify the admission of the evidence objected to upon appeal for the first time. It is, however, insisted that the judgment entered on the report of the referee was properly reversed, because there was no competent evidence tending to show that anything was due to the defendant upon the contract established by him. Upon the trial the defendant testified, without objection, that on the 14th of May, 1888, James Brady, the father of the plaintiff, brought him a paper to sign, saying: ‘Here is paper that my boy Jim and I drew up last night, and he wants you to look it over, and see what you think about it. Just read it over, and see if it suits you;’ that, after examining the paper, he said that it did not specify the time when he was to get his pay, and that James Brady then replied: ‘That will be all right. James will give you money, or I will give you money whenever you want it, and I will pay you in accordance to your work, and he will pay you in accordance to the work you have done, and as he gets it from the school board.’ A day or two later the defendant and James Brady signed the paper, which is as follows: ‘This agreement, made and entered into this 16th day of May, 1888, by and between James Brady, builder, of the city of New York, of the first part, and Christopher Nally, plumber, of the second part. Whereas, the party of the first part is about to erect a public school building on the southeast corner of Lexington avenue and Ninety-Sixth street for the city of New York; and whereas, the party of the second part enters into this agreement to do all the plumbing, gas piping, gas fixtures, sewers, and excavating for the same, furnish and put in all manner of piping, both iron and lead, that may be required to complete the said school building, including labor, to make a complete finish as laid down by plans and called for by the specifications, and to the satisfaction of the superintendent of school buildings in every respect; and for such work, labor, and materials the party of the first part agrees to pay the price or sum of eleven thousand dollars ($11,000.00). The party of the second part to pay for all permits and connections, etc., and to proceed with the work whenever it is ready.’ After this agreement had been read in evidence, without objection, the defendant offered to show that James Brady was not, in fact, the party of the first part to the contract, but that James H. Brady, the plaintiff, was the real party, and that James Brady was simply his agent. The plaintiff's counsel objected ‘to any testimony showing a different agreement than that produced in writing,’ but the referee overruled the objection, and the plaintiff excepted. The defendant then showed that James Brady was merely an agent for his son, the plaintiff, and that, although he executed the contract in his own name as principal, he was really acting only as agent. The plaintiff insists that this was an error that required a reversal, but it is well settled, as was said by Judge Andrews in Briggs v. Partridge, 64 N. Y. 357-362, ‘that a principal may be charged upon a written parol executory contract entered into by an agent in his own name, within his authority, although the name of the principal does not appear in the instrument, and was not disclosed, and the party dealing with the agent supposed that he was acting for himself; and this doctrine obtains as well in respect to contracts which are required to be in writing as those where 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 contract for the partial performance thereof, as he had not fully performed it when this action was brought. As the instrument appeared, upon inspection, to be a complete contract, embracing all the particulars necessary to make a perfect agreement, and designed to express the whole arrangement between the parties, it was presumed to embrace the entire contract, which, on its face, was indivisible as to the time of payment. Thomas v. Scutt, 127 N. Y. 133, 138,27 N. E. 961. Still the defendant had been permitted to show,...