Bourgeois v. Bustanoby

78 Misc. 404, 138 N.Y.S. 366

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1912
• Status: Published

Opinion

Lehman, J.

The complaint herein alleges that the defendants entered into an agreement for the purchase of champagne, and have failed to pay the amount due. The defendant Louis Bustanoby answered by a general denial. At the trial it appeared that the champagne was ordered by letter signed “ Bustanoby Brothers, per Louis Bustanoby,” and is written upon letter paper bearing at its head the names Louis Bustanoby, Andre Bustanoby, Jacques Bustanoby, and below these names the -words “ Bustanoby Brothers.” The defendant then introduced in evidence a certificate of incorporation of a corporation named “ Bustanoby Brothers ” and the minutes of the corporation showing that it was actually doing business. The trial justice thereupon gave judgment for the defendant, holding that the sale was made to the corporation, even though the plaintiff did not know- of its existence. In this conclusion I think that the trial justice erred. The mere fact that a corporation existed under the name of Bustanoby Brothers does not prevent stockholders from making contracts individually, and, if they do make such contracts, they are personally liable; nor does it preclude the stockholders from forming a firm, and doing business under a firm name, even though the corporation may have also adopted the same name. In this case, the order was given under circumstances equivalent to a direct representation that the firm of Bustanoby Brothers, composed of Louis, Andre and Jacques Bustanoby, was giving the order, and the plaintiff had a right to make the contract with them and to hold them liable. He sold the goods to this firm, and the members of that firm, joining in the representations that they constituted a firm, cannot be permitted to show that they were acting only as agents of a corporation. It seems to me that the case is simply one of undisclosed principal where the agent has chosen to represent himself as a principal, and cannot thereafter show that he was in fact an agent. The defendants, having entered into a contract as a firm, cannot be permitted to show that, in fact, they were representing a corporation of similar name.

The judgment must, therefore, be reversed, with costs, and, since upon a new trial the defendants cannot change the result, judgment should be entered for the plaintiff in the sum demanded in the complaint, with interest and costs.

Page and Hotchkiss, JJ., concur.

Judgment reversed, with costs.