Kelly Asphalt Block Co. v. Barber Asphalt Paving Co.
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 6, 1912, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, áre stated in the opinion.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 6, 1912, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, áre stated in the opinion. The trial justice erred in refusing to charge the jury that if for any reason the defendant would not have sold its blocks to the plaintiff, there could be no contractual relationship between the plaintiff and the defendant, and the plaintiff could not recover on the theory that Booth was agent for it as an…
1Opinion of the CourtCardozo, J.
The plaintiff sues to recover damages for . breach of an implied warranty. The contract was made between the defendant and one Booth. The plaintiff says that Booth, was in truth its agent, and it sues as undisclosed principal. The question is whether it has the right to do so.
The general rule is not disputed. A contract not under seal, made in the name of an agent as ostensible principal, may be sued on by the real principal at the latter’s election. (Henderson, Hull & Co. v. McNally, 48 App. Div. 134; affirmed on opinion below, 168 N. Y. 646; Cothay v. Fennell, 10 B. & C. 671.) The defendant…
2Cases cited13 opinions
- Arkansas Valley Smelting Co. v. Belden Mining Co.Supreme Court of the United States · 1888
- Briggs v. . PartridgeNew York Court of Appeals · 1876
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- Winchester v. HowardMassachusetts Supreme Judicial Court · 1867
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