#### Augustus H. Whiting et al., Respondents, *v.*Thorndike Saunders, Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

Agency — Liability of the agent of a disclosed principal where he makes disclosure too late.

While an agent acting, for a disclosed principal, in regard to a contract connected with the subject of his agency and within the limits of his authority, is not personally liable unless he cleanly indicates an ■ intention to substitute his personal liability for or superadd it to that of his principal, he may incur personal liability where he enters into a contract, *e. g.*for the'procuring by brokers of a purchafser, by exchange, of his wife’s real estate — without, in the first instance disclosing his principal, and where he never discloses her 'interest until about the time when the final written contract between the vendor and. purchaser is to be executed.

Whiting v. Saunders, 22 Misc. Rep. 539, affirmed.

' Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, entered on the verdict of a jury, in favor of the plaintiffs, ■

*333Saunders, Webb & Worcester, for appellant.

S. A. & D. *J.*Noyes, for respondents.

Gildersleeve, J.

The only question presented on this appeal that requires discussion is the claim of defendant that he was acting as agent for his wife, a disclosed principal, and without agreement to bind himself personally, and that he cannot, therefore, be held liable. It is well -settled that when the agency is disclosed, and the contract relates to the matter of the agency, and is within the authority conferred,. the agent will not be personally bound, unless upon clear and explicit evidence of an intention to substitute, or.to superadd, his personal liability for, or to that of the principal. See Hall v. Lauderdale, 46 N. Y. 74. This question of disclosed agency was not specifically referred to in the charge of the trial judge, although he tells the jury that they must satisfy themselves that defendant employed plaintiffs to do the work for him; but, as the jury found in favor of plaintiffs, we must accept their verdict as conclusive on this point, if there is any evidence tending to sustain such a finding- H, however, there is no such evidence, then it was an error of law on the part' of the trial judge to refuse defendant’s request for the direction of a verdict in his favor, and, upon defendant’s exception, to such ruling, a question of law is presented to the Appellate Term for consideration. All the other questions in the case were fairly submitted to the jury, and they have decided them, upon competent evidence, in favor of the plaintiffs. With this 'finding the Appellate Term cannot interfere. The questions of law raised by exceptions to the admission or exclusion of evidence are not of sufficient weight to demand discussion. The only question, therefore, for the Appellate Term to decide is whether there was any evidence to support a finding that defendant acted with undisclosed principal, or, if the agency was disclosed, whether he acted with intention -or agreement to substitute, or superadd, his personal liability for, or to, that of his principal. Hall v. Lauderdale, *supra.*It is not for us to weigh the -evidence, if conflicting; but it is our duty simply to ascertain if there is any evidence on this point toi support the ruling of the trial judge on defendant’s motion for the direction of a verdict.

I lie plaintiffs were real estate agents. The wife, of defendant was the owner of certain property at Long Branch and at Verona. The defendant, acting as agent for his wife, placed this property *334in plaintiffs’ hands for exchange for city real estate. After considerable negotiation, a sale, by exchange, was effected for some property in Brooklyn, owned by Mrs. Boschen. Plaintiffs’ counsel put the plaintiff Richters on the stand, and he testified, with' regard to the question under consideration, as follows: “I entered them (the property of defendant’s wife) in our books in the name of Thorndike Saunders, the defendant; I did not know anybody else as owner at .that time. * * * The contract (of sale or exchange between Mrs. Saunders and' Mrs. Boschen by their attorneys) was drawn up in writing. *I drew it up.*I presentéd it to Mr. Boschen for his wife’s signature. He signed it. I presented it to Mr. Saunders. He signed it in my presence, *‘*Emma. Saunders by Thorndike Saunders, attorney.’ That was the first intimation that I had that anybody but Thorndike Saunders was interested in these properties in New Jersey. He said his wife owned it,.and that he had power of attorney.' This-was the first time I was apprised that his wife Was the owner. ' I was the subscribing witness, and saw him sign it, and I saw Mr. Boschen sign for his wife.” This contract, which plaintiff swears he himself, drew up, begins as follows: “Agreement made and entered into, the 21st day of November, 1894, between William 0. Boschen, attorney for Martha Boschen, of the City of Brooklyn; party of the first part, and *Thorndike Saunders, attorney for Emma Saunders,*of Asbury Park, N. J., party of the second, part,” etc.; and the' contract clearly shows that Emma Saunders was the principal, not the defendant. On his cross-examination, by Mr. Saunders, the plaintiff swears, “ I testified that I did • not know that Emma ■Saunders was the owner of'the New Jersey property until after I ■ had seen signed, 6 Einma Saunders, per T. 'Saunders, attorney.’ J had no recollection of your mentioning Mrs. Saunders until the time of' Itihe contract. I also testified that I drew" this Exhibit A (the 'contract in question), and that I, presented it, before I brought it to 'Mr. Saunders, to Mr. Boschen, and that he signed, ‘ Martha Boschen by William O. Boschen, attorney in fact; ’ and that then I brought it to Mir. ■Saunders, and he signed it, *‘*Einma Saunders by T. Saunders, ¿ttorney.’ ” Q. “ Then, if you drew this agreement -before you knew that I was acting as attorney for Emma Saunders, how "does it happen that you wrote into the first párt of that *agreement,.‘*and Thorndike "Saunders, attorney for Emma Saunders, of Asbury. Park, :N. J” Í Look at it,"and answer that question.” A.' “Mr. *335Saunders, it was about the time the contract was drawn, that I found it out. You told me, *at the time you said you would make the trade,*to go make the contract, to draw fit that way. I would like to say this thing occurred three years ago, and I had no- idea of having any trouble in the matter.’ We had the property on our books in your name. My recollection is that I did not know until I was informed by Mr. Saunders, *tohen we got ready to make the contract.”*Q. *“*Is it not true that, when I told you about these properties, ithat I told you my wife had the equity in the Long Branch property and in the lots in Verona, and that she and I wanted to come to New York, and exchange them for a flat? ” A. “ I recollect *something*of that conversation, but I cannot recollect it exactly, it is so long ago.” Q. “ Is that the fact or not? ” A. “ Not to my knowledge.” Q. *“*You won’t deny positively, that it is the fact? ” A. “ No, not positively.”

There can be no doubt that plaintiffs were aware of defendant’s agency before the contract of exchange or sale, between Mrs. Saunders and Mrs. Boschen, by their attorneys, was executed, or even drawn up; but we are of opinion that there is,some evidence tending to show that plaintiffs did not know of 'defendant’s agency until after they had undertaken the employment of finding a purchaser, and had brought the transaction, practically, to a close. The subsequent disclosure of the principal came too late, for a person, contracting as agent, will be personally responsible, where, at the time of making the contract, he does not disclose the fact of his agency, but treats with the other party as being himself the principal; for, in such case, it follows, irresistibly,, that credit is given to him on account of the contract. He must disclose the fact that he is acting only as agent, in order that the other party may determine whether he will accept the responsibility of the principal in the transaction. See Ashner v. Abenheim, 19 Misc. Rep. 288; Story on Agency, § 266.

As we have said, it is not for the Appellate Term, on an appeal from the City Court,, to weigh the evidence, if conflicting; and, since there is some evidence to sustain the finding of the jury, their verdict will' not be disturbed on appeal.

■ Eor the reasons above stated, the judgment appealed from should be affirmed, with costs.

Beekman, P. J., and Giegerich, J., concur.

Judgment affirmed, with costs.