Frederick M. Crossett, Appellant, v. I. Osgood Carleton, Respondent

Frederick M. Crossett, Appellant, v. I. Osgood Carleton, Respondent. ■Contract — when it is created by telegrams — effect of a failure to disclose a principal. The complaint in an action brought to recover damages for an alleged breach of contract alleged the .following facts: That the plaintiffs sent to the defendant a telegram, inquiring ‘!At what price can you supply O. F. I. (meaning cost, freight and insurance) * * * one million standard Calcutta wheat bags,” and proposing certain terms of payment; to which the defendant telegraphed a reply, signed with the name Under which he was trading, which stated that “ Calcutta offers subject to immediate reply,” the desired goods, specifying the price, and concluding: “Must have a confirmed bankers’ credit on London, four months’ sight, subject to reply by five p. m. here to-day, Thursday,” upon receipt of which reply the plaintiffs sent a telegram, which was received by the defendant within the time fixed, stating their acceptance of the offer, and •containing the request: “Wire us confirming this and naming your correspondent in Calcutta, and instruct us regarding credit.” The defendant denied all liability in the premises. Upon the hearing of a demurrer interposed to this complaint, it was Held, that the complaint stated a cause of action; That the expression “Calcutta offers” was not to be construed as meaning that some one in Calcutta offered to furnish the goods required by the plaintiffs, which offer the defendant, as agent, undertook to communicate to the plaintiffs, but was tO' be construed to mean that the defendant himself made the offer upon advices received from Calcutta; That, if it were to be assumed that the defendant was acting for persons in Calcutta, he would still be liable by reason of his having failed to disclose his principal; " That the expression “Wire us confirming this and naming your correspondent in Calcutta, and instruct us regarding credit,” was not to be regarded as an attempt, upon the part of the plaintiffs, to qualify their acceptance of the offer. Appeal by the plaintiff, Frederick M. Crossett, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the complaint. The complaint alleges that on the 7th of January, 1897, the plaintiff’s assignors telegraphed the defendant, trading under the name of Carleton & Moffatt, as follows : “ Carleton & Moffatt, New York: “At what price can you supply C. F. I. (meaning cost, freight and insurance) June, July delivery, one million standard Calcutta wheat bags. Terms, notes payable 1st day of November, 1st day of December, interest to begin 1st day of July. “ E. L. G. STEELE & COMPANY.” That in reply thereto the defendant telegraphed the said assignors as follows: “ E. L. G. Steele & Co., San Francisco:. “ Calcutta offers subject to immediate reply one million centals (meaning Calcutta wheat bags, size 36x22, weighing 12 ounces) March, April shipment steamer three and 92/100 cents net cost and freight. Must have a confirmed bankers’ credit on London four months’ sight, subject to reply by five p. m. here to-day, Thursday. “ CARLETON MOFFATT.” And that on the same day the plaintiff’s assignors accepted said offer by replying as follows : “ Carleton & Mofeatt, 132 Front street, New York: “ We accept for our account one million standard Calcutta grain bags, size twenty-two by thirty-six, weight twelve ounces as per yotir telegram of to-day. Wire us confirming this and naming.your correspondent in Calcutta and instruct us regarding credit. “E. L. G. STEELE & CO.” The complaint further alleges that said telegram of acceptance was received by the defendant before five $>. m.' on said 7th- day of January, 1897, and that said E. L. G. Steele & Co., the plaintiff’s assignors, were prepared to give- such banker’s credit as the defendant should require; that the said firm of Steele & Go. were and have been willing to carry out the terms of said contract; and that on January 8, 1897, the defendant declined to fulfill said contract and declined all liability on account of the offer made by him on the previous day. On the 12th day of -March, 1897, Steele & Go. assigned their claim for a valuable consideration to the plaintiff, who is the sole exclusive owner and holder of said claim. The defendant demurred to the complaint on the ground that it does not state facts sufficiént to constitute a cause of action. The demurrer was sustained, and from the interlocutory judgment thereafter entered this appeal is taken. H. S. Van Duzer, for the appellant. R. Burnham Moffat, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The plaintiff insists that the telegrams set forth in the complaint constituted a completed contract between the parties, whereby the defendant offered to sell to the plaintiff’s assignors one million centals (that is, Calcutta wheat bags of a certain capacity), and that such offer was accepted. The defendant insists that the telegrams do not support any such contention. The inquiry of the plaintiff’s assignors contained in the first telegram is clear. It is, “At at what-price can you supply * * * June, July delivery, one million standard Calcutta wheat bags?” This inquiry was beyond doubt directed personally to the defendant. The telegram sent by the defendant in answer, says “ Calcutta offers * * * one million centals.” It is insisted by the defendant that the fair reading of this telegram was. that it was an offer made not by him, but by somebody else which he transmitted. ■ As will be seen, the question turns upon the construction of the phrase “ Calcutta offers.” We think it wbuld be straining the language used to assume' that such 'phrase meant that somebody in Calcutta offered to sell. The more reasonable and natural view to take would be that, the plaintiff’s assignors having asked the defendant if he would sell, the words “ Calcutta offers,” as used by the defendant, mean that ‘■from advices received from Calcutta, we offer you,” and then follow the terms, which are different from the offer. This answer is signed, not by the defendant as agent, but- in his firm name, and presumably, therefore, in his personal and not in any representative capacity. That this is a reasonable construction follows from the fact that the plaintiff’s assignors were not asking the defendant what he could obtain from Calcutta, but the inquiry was, what “ you,” meaning the defendant personally, would sell the bags for. Before answering the telegram it might well be that the defendant needed advices from Calcutta as to the terms' upon which he could get the bags, which would fully explain the phrase used, “ Calcutta offers.” It will also be noted that in his telegram the defendant requested an answer by five p. m. The only purpose of requiring that answer was to have the contract completed. There was no one suggested to whom the plaintiff’s assignors could direct their answer except to the defendant, and it was- entirely immaterial from whom the bags were obtained, provided they were of the proper standard; but as the bags were undoubtedly to come from Calcutta, the price and time of shipment from that place were important. To hold that these telegrams did not make a contract would necessarily assume that the reply which the defendant required was with no intention of binding either himself or any one else, because there is no suggestion of a dealing between the plaintiff’s assignors and any person except the defendant. The latter does not intimate that he was acting in a representative capacity or for an undisclosed principal, nor do we think any such inference is to be drawn from the fact that in the confirmatory telegram to the defendant, accepting the latter’s offer, we find a request for the defendant to name “ correspondent in Calcutta.” We think it was an erroneous' assumption on the .part of the judge below to conclude from this that the senders of the telegram considered that they were dealing with the defendant as an agent, and that it was sent with a view of learning the name of the principal. It must be remembered that the defendant required, among other conditions, “ a confirmed bankers’ credit on London ; ” and it was necessary for the plaintiff’s assignors to know who was to receive this credit, as it was equally proper for them to know the name of the party who was to ship the bags. It would be placing too much importance upon such language to conclude that it was an inquiry for the name of the defendant’s principal, while the telegrams themselves show that all the essential dealings were immediately with the defendant. The plaintiff’s assignors were not concerned with the question of how or from whom the defendant might obtain the bags ; but having made a contract with him to purchase them, it was of course proper that they should have the information, so that they might comply with the terms contained in the defendant’s telegram in reference to credit and the place from .which the bags were to be shipped. If, 'however, the defendant was in fact acting as agent, we think he was still liable for failure to disclose the name of his principal. The general rule is that one who acts as agent for another, in order to release himself from liability, should disclose his principal, because otherwise it would be presumed that he intended to bind himself personally. In other words, it is not the duty of one dealing with an agent to find out whether he is acting in the transaction in that .capacity or as principal, but it is the duty of the agent, if he desires to relieve himself from personal liability, to disclose the name of his principal in the transaction. The conclusion at which we have arrived, therefore, is that there was a direct inquiry to the defendant personally,, as to the price at which he would sell the bags; that in reply the- defendant proposed ' the terms upon which he would sell, and that the final telegram of the plaintiff’s assignors was an acceptance of the offer made and completed the contract. There is nothing in the language, “ Wire us confirming this and naming your correspondent in Calcutta, and instruct us regarding credit,” contained in this telegram, which in any manner left the matter open, or from which the inference can be drawn that the minds of the parties had not met, because what was thereby sought was an acknowledgment of the receipt of the telegram, and the details and method by which the plaintiff’s assignors could perform the contract on their.part. Such a request was in no sense an addition to the terms- of the contract, nor did it change what was an absolute acceptance into a conditional one. We think the fundamental error in the view taken by the court below, upon .both theories of the complaint, was in straining to draw inferences against the pleading upon demurrer, rather than to apply the rule, which is firmly settled, of giving to the language employed that interpretation • which can be fairly gathered therefrom, and which will sustain rather than destroy the pleading. The judgment should, therefore, he reversed, with costs, and the demurrer overruled, with costs, but with leave upon payment thereof to withdraw the demurrer and answer upon payment of costs in this court and court below. Yah Bruht, P. J., Barrett, Rumsey and Ingraham, JJ., concurred. Judgment reversed, with costs, and demurrer overruled, with costs, hut with leave upon payment thereof to withdraw demurrer and answer on payment of costs in this court and in the court below.