Baer v. Bonynge , 72 Hun 33 ( 1893 )

FOLLETT, J.

This action is for the recovery of damages for the alleged breach of a contract to procure a contract to be made. It should be borne in mind that the defendant did not own the property of which the plaintiff desired a lease, but it was owned by Ms wife, which fact was known to the plaintiff, as appears by the third subdivision of his complaint, and from his testimony. He testified that defendant told him that his wife owned the property, and that he (the plaintiff) told the defendant that he desired that the proposed lease should be executed by defendant’s wife, because he did not produce a power of attorney authorizing him to execute a lease for her. It ‘is plain that the negotiations between the litigants were carried on with knowledge that defendant’s wife owned the property, and with the understanding that she should become the lessor, and that the defendant was acting as her -advisor, or, at most, as her agent. A person acting as agent is not liable for the failure of his principal to perform a contract entered into by the agent in behalf of the principal, unless he acts for an undisclosed principal, or without authority, which 'is unknown to the other party, or unless he binds himself personally by the contract. The defendant was not acting for an undisclosed principal, he did not bind himself personally, and it was not shown that whatever he did was without authority, and it is difficult to see upon what principle he can be held liable in this action. It seems unnecessary to consider the question, discussed on the argument and on the briefs, whether, under the statute of frauds, a valid lease, or a valid contract to give one, founded on a good consideration, arose out of the negotiations, oral and written, between the litigants, for the defendant did not assume to contract for himself, but for his wife. It seems that the defendant’s advice to Ms wife not to execute the lease was based on the plaintiff’s unwillingness to make a satisfactory sublease of the basement. The letter stating the terms of the proposed leas© contains the following:

“You may make any terms you like about the upper portion of the building, but you must let me know what the rent of the basement is to be, and have it agreed on. From what hear, I would not make his lease less than $3,000 a year.”

The proposed lease provides “that the tenant will not assign the lease, or underlet, without the written consent of the landlord.” The defendant expressed dissatisfaction with the sublease of the "basement, which the plaintiff proposed to give to Mr. Strouver. The plaintiff’s motion for a new trial should be denied, and a judgment ordered for the defendant, with costs. All concur.