#### Siegmund T. Meyer *et al.*plaintiffs, *vs.*Harris Fiegel, *et al.*defendants.

1. The practice of a defendant’s waiting, unlit the plaintiff has closed the evidence in his case, without objecting to the sufficiency of the complaint, and then doing so, disapproved. Although such objection is not waived by answering, yet if the defendant does answer and goes to trial, he should not be allowed to take the objection, after the plaintiff’s proof is in, without objection, provided such proof establishes a cause of action. *Per*Mo-NEM,, J.

2. If, however, it is proper to allow such a practice, it should be subjected to Certain Well understood rules, applicable under the tiode, in determining the sufficiency of pleadings, and to the power of the court to grant amendments, If the facts proven and n'ot objected to, establish a good cause of action, the court may allow the complaint to be amended, or may conform the pleadings to the facts proved. The power to amend a pleading, or to conform it to the facts proved, is discretionary; but it ¡nay be exercised in the cases and under the limitations contained in section 173 of the Code. ■ If therefore on the trial, any defect in the complaint is allowed, without objection, to be supplied by proof, the objection may be overruled. *Per*Moneli, *J.*

3. Where the plaintiffs, being sole agents for a certain article of commerce, received orders from third persons for such article, and then ordered the goods from the manufacturers, they obtaining and delivering them to the persons giving the orders; and their mode of doing business was, upon receiving an order from third persons, to order from the manufacturers a corresponding quantity for resale by themselves to the parties giving the order; and the defendants gave the plaintiffs an order whereby they were directed to order a specified quantity of such article, and they Were to sell the same to the defendants; *Setd,*that such facts created a sale by the plaintiffs to the defendants. That the mere styling themselves “ agents ” did not take from them the character of principals, if they were in fact such, in their dealing with the defendants.

4. *Held, also,*that if the plaintifib had proved that upon receiving the defendant’s order they purchased the goods of the manufacturers and paid for them, and had them ready for delivery, such proof would have shown a cause of action in their favor, against the defendants.- And that it was therefore erroneous to exclude evidence tending to establish those facts.

*1235. *Seiit, further,*that all objection, that the acceptance of the order by the plaintiffs was qualified, and that there was no averment that such qualification was agreed to by the defendants, was obviated by the fact that part of the goods were delivered to and accepted by the defendants, in part performance of such contract, after and under such qualification.

(Before Monell, Garvin and McCunn, JJ.)

Heard February 13, 1867 ;

decided February —, 1867.

This was an action brought to recover the difference between the contract price of a quantity of glazed wire, and the price such wire brought at auction, after the defendants had refused to accept a delivery.

The complaint alleged that the plaintiffs were sole agents for a certain article of commerce known as “Washburn « & Moen’s crinoline springs.” That as such agents it was their business to receive orders for such springs, and upon such orders .to order them from the manufacturers; they, the plaintiffs, in fact, obtaining them, and delivering them to the parties giving the orders. That their mode of business was to enter upon a book, called an order book, such orders as they received, and upon the faith of such orders, to order from the manufacturers a corresponding quantity for resale to the parties giving the order. That the defendants gave to the plaintiffs an order as follows: “ Gentlemen—Please to enter for me, on your order book, twenty-five barrels of Washburn & Moen’s glazed wire, at the rate of 77 for 18, 3 per cent discount.” That the meaning of said order was, that the plaintiffs should order the wire, and sell the same to the defendants, That the plaintiffs did order the wire, and notified the defendants, and subsequently informed them that they had received the same, and had it ready to deliver to them. That afterwards the plaintiffs delivered to the defendants nine barrels of springs, parcel of said order, which the defendants accepted. The complaint then alleged an offer to deliver the residue of barrels of wire, a refusal by the defendants to receive, a subsequent sale, and a deficiency. *124The answer denied nearly all the allegations in the complaint.

Upon the trial before Justice Barbour and a jury, the plaintiffs read in evidence the written order of the defendants. To one of the plaintiffs, Seigmund T. Meyer, called as a witness, their counsel propounded the following interrogatories, each of which was objected to by the defendants’ counsel, on the ground that the testimony sought to be elicited was irrelevant and inadmissible under the pleadings herein.

Q. TJpon this order, (showing “ Exhibit A,”) what did you do, if any thing, to obtain twenty-five barrels of wire for *Fiegel*& Strauss ?

Q. Did you purchase from Washburn & Moen twenty-five barrels of wire ?

Q. Was there any time fixed between you and Messrs. Fiegel & Strauss relative to the delivery of this wire ?

Q. Was there any agreement between you and Messrs. Fiegel & Strauss in regard, to the various prices which you were to deliver ?

Q. What is the explanation, according to the trade, of the words “of 77 for 18, 3 per cent discount,” in the defendants’ letter of August 23, 1864, and of your saying on the basis of 77 cents per pound for Bio. 18 ?

The objection to those questions was sustained by the court; and each of the questions overruled. To such decision in regard to each question separately the plaintiffs’ counsel excepted. The plaintiffs’ counsel then asked for leave to amend the complaint, by substituting the word “purchasing” for the word, “obtaining” in the phrase “they (the plaintiffs) in fact obtaining them;” which the court refused. To that decision the plaintiffs’ counsel excepted.

The plaintiffs not offering any further evidence, the *125defendants’ counsel moved to dismiss the complaint on the grounds:

1st. That it appeared by the complaint, that the plaintiffs had no interest in the subject matter of controversy, and therefore could not maintain this action.

2d. That the facts stated in the complaint did not constitute a contract between the parties, nor between the defendants and Washburn & Moen.

3d. That the complaint did not show, and the facts ■ therein stated did not constitute, a cause of action.

Whereupon, the court granted such motion, and dismissed the complaint; to every part of which decision the plaintiffs’ counsel excepted.

The judge thereupon, on motion of the plaintiffs’ counsel, directed the exceptions to be heard in the first instance, at the general term, and that judgment in the meantime, be suspended.

*P. J. Joachimsen,*for the plaintiffs.

I. The questions to the witness Siegmund T. Meyer were each of them relevant to show that the plaintiffs had actually obtained the wire for the defendants, and purchased the same out of their own funds; had verbally agreed to deliver the same at a certain date, and at what prices ; and to explain the apparent ambiguity of the expressions *“*77 for 18, 3 per cent discount,” and “ on the basis of 77 cents per lb. for No. 18,” and to - show that such expressions represented an agreed price for a certain merchandise. All of this evidence was pertinent to the controverted fact, as to the agreement between the plaintiffs and defendants. *(Hinton*v. *Locke,*5 *Hill,*437.)

H. The plaintiffs have a clear interest in the subject matter of controversy, and are entitled to bring an action for the damage by breach of contract. According to the complaint, the plaintiffs themselves had obtained twenty-*126five barrels of wire for the defendants, for which the defendants were to pay the plaintiffs a certain price, which it is shown the defendants had neglected to do ; the wire being sold for the defendants’ account, netted a loss to the plaintiffs personally. This is certainly an injury and a damage to the plaintiffs, and gives them an interest and standing as suitors. Upon the very narrowest construction of the complaint, the plaintiffs must be considered as trustees of an express trust, within the decisions. *(Grinnell*v. *Schmidt,*2 *Sandf.*706. *Minturn*v. *Main,*3 *Seld.*224. *White*v. *Chouteau,*10 *Barb.*202.)

III. The facts stated in the complaint constitute a cause of action. The defendants applied to the plaintiffs in writing, for a certain quantity of wire. That satisfied the ■ statute of frauds. The plaintiffs answered the proposal; a partial delivery was made; as to the balance, the defendants declined to receive the same. Credit not being stipulated for, the plaintiffs were not bound to part with the property, except upon the payment of cash. The defendants did not pay, and the property deteriorated. Such facts constitute a clear cause of action on contract.

IV. It was the duty of the defendants to reply to the plaintiffs, if they, the defendants objected in any way to the plaintiffs’ terms, *(Mactier*v. *Frith,*6 *Wend.*111. *Morse*v. *Bogert,*4 *Denio,*108.)

V. The learned judge erred in dismissing the complaint. The trial term was not the proper place to try a demurrer to the complaint.

*A. Boardman,*for the defendants.

I. The complaint shows that no contract was entered into between the plaintiffs and the defendants, (conceding that the plaintiffs were the true parties in interest.) No contract exists until the parties have agreed upon the same thing in the same sense. If a party accepts a proposition, *127only on condition, or with a change' of its terms not altogether immaterial, it is no contract. *(Parsons’ Mercantile Law, pp.*14, 17. *Hutchison*v. *Bowker, 5 M. & W.*535. *Suydam*v. *Clark,*2 *Sandf.*133.)

I. In this case the order was given for twenty-five barrels of Washburn & Moen’s glazed wire, at the rate of 77 cents for that known as No. 18, less three per cent discount. The order was *accepted,*with *four modifications:*1st, it was to be at seventy-seven cents per pound, without allowing discount; 2d, it was to be dependent on the defendants furnishing a memorandum of the assortment of wire required ; 3d, it was to be subject to the defendants stipulating as to the time in which they would agree to receive the wire; and, 4th, it was to be accepted subject to the government tax. The proposition of the defendants not being accepted as tendered, there was no contract.

II. The plaintiffs rely on a partial acceptance of the goods. This is not the case of a verbal contract and of a part delivery, taking it out of the provisions of the statute of frauds. The complaint conclusively shows that there never was *any*contract, either verbal or written.

NI. The complaint shows that the plaintiffs were not the true parties in interest, but were the agents for Wash-burn & Moen, and that “ *as such agents*” they received orders and transmitted them to Washburn & Moen; and on receiving the goods, deliverd them to the parties giving orders therefor. Their principals, and not themselves, should have brought the suit.

TV. The allegations of the complaint were denied by the answer; and the questions overruled by the court were either not pertinent to any issue formed by the pleadings, ' or were incompetent on the ground that they contradicted the record. There being no evidence in support of the plaintiffs’ case, the complaint was properly dismissed, irrespective of the grounds of dismissal set forth in the case.

*128Monell, J.

No question arises in this case upon the exceptions of the plaintiffs to the dismissal of their complaint. If the ruling of the learned justice in excluding the evidence offered in support of the plaintiffs’ claim was correct, then there, was no error in dismissing the complaint, for there was no evidence to support the cause of action. Hor can we now consider the question of the sufficiency of the facts stated in the complaint as constituting a cause of action. "When the plaintiffs’ evidence was excluded, a motion had not been made to dismiss the complaint on the ground that there was not a cause of action stated, nor upon any ground; and if the. complaint was open to objection, the deficiency in the statement might have been supplied by proof. ■ I cannot subscribe to the propriety of the practice, of allowing a defendant to wait until the plaintiff has closed his case without objecting to the sufficiency of the complaint, and then objecting. Such objection, it is true, is not waived by answering; but if the defendant does answer, and goes to trial, he should not be allowed to take the objection after the plaintiffs’ proof is in, provided such proof establishes a cause of action. The Court of Appeals, in *Smith*v. *Countryman,*(30 *N. Y. Rep.*655, 668,) discourages such practice, and holds that if new matter be inserted in an answer not constituting a defense it should be demurred to; and that the practice resorted to in that case to correct the pleadings by motion at the trial, was not warranted by the Code, “ and should not be encouraged.” So it has been frequently held that such objection to the complaint cannot, be first taken on appeal. *(Pope*v. *Dinsmore, 8 Abb.*429. *Winterson*v. *Eighth Avenue Railroad Co.,*2 *Hilt.*389.) If, however, it is proper to allow such practice, it should be subjected to certain well understood rules, made applicable by the Code, in determining the suffi*129ciency of pleadings, and to the power of the court to grant amendments.

*First.*If the facts proven establish a cause of action, the court may allow the complaint to be amended. *(Code,*§ 173.)

*Second.*In the like case the court may conform the pleadings to the facts proved. *(Id.)*The power to amend a pleading or to conform it to the facts, is discretionary; but it may be exercised in the cases and. under the limitations contained in the section I have referred to. If, therefore, on the trial, the defect in the complaint is supplied by proof, the objection may be overruled. *(Lounsbury*v. *Purdy,*18 *N. Y. Rep.*521. *Emery*v. *Pease,*20 *id.*64.)

"When the questions were propounded to the witness Meyer, a motion to dismiss the complaint had not been made, and the answers to such questions might have overcome the objections to the complaint, by proving a contract of sale from the plaintiffs to the defendants, rendering it proper, in the discretion of the court, to allow an amendment, or to conform the pleadings to the facts. Besides, it does not follow that an objection of variance would have been taken, inasmuch as to make such objection available, it must be proved that the party objecting has been misled. *(Code,*§ 169.)

It seems to me, as the case stood when the evidence was sought to be given, it was error to exclude it. Such evidence it was doubtless expected would show a right to recover a judgment; and if it had proved sufficient to have enabled the court to give judgment according to the facts stated and proved, such a judgment might have been rendered, “ without reference to the form used, or the legal conclusions adopted by the pleader.” *(Wright*v. *Hooker,*10 *N. Y. Rep.*59.)

But I also think the complaint contained a statement *130of facts sufficient to constitute a cause of action. The pleading was inartistically drawn, redundant, and in parts irrelevant. It, however, alleged that the plaintiffs were sole agents “ for a certain article of commerce known,” &c.; that it was their business to receive orders, and to order the goods from the manufacturers; they, in fact, obtaining them and delivering them to the persons giving the orders. Their mode of business was, upon receiving an order, to order from the manufacturers a corresponding quantity for resale to the partiés giving the order; and that the meaning of the defendants’ order was, that the plaintiffs should order the wire and sell the same to the defendants.

These allegations, if proved, would, I think, establish a sale by the plaintiffs to the defendants. The mere styling themselves *“*agents ” did not take from them the character of principals, if they were such in their dealing with the defendants. Persons who have exclusive right to' make sales of particular manufactures within certain limits, frequently style themselves “ agents,” and receive orders, which orders are filled by the manufacturers. But there is no such relation of-principal and agent as would authorize the manufacturer to sell in his own name. Such persons stand in the relation of principals to their customers, and can enforce their contracts in their own names. Hence, in this case, if the plaintiffs had been permitted, they might have proved, that upon receiving the defendants’ order, they purchased the goods of the manufacturers and paid for them, and had them ready for delivery. Such proof, it seems to me, would have shown a cause of action in their favor against the defendants.

The objection that the acceptance of the order by the plaintiffs was qualified, and that there is no averment that such qualification was agreed to by the defendants, is obviated by the allegation that part of the wire was deliv*131ered and accepted by the defendants, after and under such qualification.

But, I think, without pursuing the argument further, that I have shown that the exclusion of the evidence wp.s improper; and for-that reason, even assuming that the complaint was defective, the order dismissing the complaint should be reversed, and a new trial ordered, with costs to abide the event.