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H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

Appeal from an order of the Appellate Division overruling demurrer of the defendant. Reported below, 33 N. Y. Civ. Pro. 278.

Benno Loewy, for appellant.

Gilbert Ray Hawes, for respondent.

O'BRIEN, J.-The plaintiff sought to recover damages from the defendants, husband and wife, for breach of a contract. The plaintiff alleges that he is a professional singer and that a contract of employment was made with him. The husband alone has demurred to the complaint upon the sole ground that several causes of action have been improperly united in the complaint. The court overruled the demurrer and the order was affirmed on appeal. The case comes here upon appeal with a question certified, which, in substance, is, whether the complaint is open to the objection stated in the demurrer.

There are numerous questions that sometimes arise upon pleadings with which we are not at all concerned in the disposition of this case. The complaint may be defective in clearness of statement or in logical order, and the plaintiff may not be able at the trial to prove his case as stated. The objection must be determined upon a view of the whole complaint reasonably construed with reference to the facts stated, and every influence flowing from such facts. We are not to fasten upon a word, a phrase or a sentence in the complaint, and give it a meaning which it will not fairly bear, in order to sustain the demurrer. Every reasonable and fair intendment is to be made in support of the pleading (Zabriskie v. Smith, 13 N. Y. 330; Marie v. Garrison, 83 id., 14, 23; Sanders v. Soutter, 126 id., 193; Sage v. Culver, 147 id., 241). It may very well be that the complaint does not state any cause of action whatever against the husband, but he raises no such objection now, but reserves it, as he may, to be made at the trial. His objection really is that it does contain a good cause of action against him.

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

It is provided by section 497 of the Code of Civil Procedure that when a demurrer to the complaint is allowed, on the ground that two or more causes of action have been improperly united, the court may direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. This plainly implies that, in order to sustain a demurrer on this ground, the complaint must contain two or more causes of action so well stated and so complete and perfect that the court can divide them into the necessary number of actions. It will not do to say that the complaint contains one good cause of action and some vague and ambiguous words or expressions that, by construction, may be made to point to another cause of action. All that must be corrected, not by demurrer, but by motion. So that, in order to sustain the demurrer in this case, we must find two causes of action plainly stated, each in itself complete and perfect upon a fair and reasonable construction of the language employed. The complaint, in form and upon its face, does not profess to state more than one cause of action. It all relates to one subject, although divided into eight clauses or paragraphs, but no reference is anywhere made to a second cause of action as such. The only words that can possibly be claimed to point to more than one cause of action are to be found in the second and third paragraphs, which read as follows, the italics being our own: "That the defendant Henry Wolfsohn conducts a musical bureau for the purpose of securing concert and recital engagements for high-class artists, which business is owned by his wife, the defendant Paula Wolfsohn, the defendant Henry Wolfsohn acting as her agent, although said Henry Wolfsohn pretends to be conducting said agency on his own behalf and without disclosing his said wife as principal." Here we have a clear and distinct allegation of a fact, namely, that the husband is conducting a certain business as agent for his wife, the business being owned by her. This is an admitted fact that has a

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

material bearing upon the construction of the complaint. The truth and the fact being that the husband is conducting the wife's business as her agent, the other words in italics are immaterial, irrelevant or redundant and could be stricken ont on motion. So long as the fact was that the husband was the agent of the wife in the conduct of her business it was of no consequence that he pretended to be something else. The husband's pretenses add nothing to, nor do they take anything from, the significance of the conceded fact that he was the agent of his wife, so that we may pass over this paragraph as containing nothing except a very proper allegation that the husband was the business agent of the wife. The redundant words referred to contain no element of a cause of action and may be rejected as the merest surplusage.

The next or third paragraph is one upon which the learned counsel for the demurring defendant has sought to construct a second cause of action, and that reads as follows: "That on or about the 7th day of June, 1901, a contract was entered into between plaintiff and said defendant Henry Wolfsohn, acting as agent for his undisclosed principal, Paula Wolfsohn, whereby plaintiff appointed said Henry Wolfsohn his sole manager for America and Canada for a term of one year, agreeing to pay said Wolfsohn 10 per cent. of all plaintiff's engagements, and also agreeing to submit to him all his business communications, and not to accept any engagements without his consent." The argument in support of the demurrer rests entirely upon the use of the single word "undisclosed" in the foregoing quotation. If that word is rejected, then the paragraph would contain a plain statement that on a certain day the plaintiff and the husband, acting as agent for his principal, the wife, entered into a certain contract with respect to a certain subject-matter which is more particularly described. It is alleged that whatever contract the husband made, he made it as agent for his wife. That was the capacity in which

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

he made the promise and that is the capacity in which the plaintiff accepted it. The word "undisclosed" may be treated as a mere descriptio personae, and of no more consequence than if the pleader had described the wife, who was the principal, by any other adjective. The parties to the contract are stated to be the plaintiff on the one part, and the husband, as agent, on the other, and being such agent and carrying on the business for his wife as alleged, he had the power to bind her by the contract and on the face of the complaint she is bound. So it is plain that the second cause of action in this complaint, if there be one, must be built up entirely upon the use of the word "undisclosed," and that I think would be quite too narrow and technical a construction of the language of the complaint.

The learned counsel for the demurring defendant has made an ingenious and refined argument to prove that the agent who concededly acted as agent for his principal in making the contract, at the same time omitted to disclose his principal. If it be true, as alleged, that the husband acted as agent of the wife in making the promise, it must have been accepted by the plaintiff in the character in which it was made, and so it is rather difficult to see how it could be possible that the principal still remained undisclosed. The rule of law applicable to such a case was stated by Judge Martin in DeRemer v. Brown (165 N. Y. 419) as follows: "A person, even though making an agreement for another, makes himself personally liable thereon if he contracts in his own name without disclosing his principal, although the other party to the contract may suppose that he is acting as agent." As I understand the rule thus expressed, the agent becomes personally liable when he contracts in his own name without disclosing his principal. But in this case the husband did not contract in his own name. He contracted, if the statement of the complaint be true, as agent for his wife, which necessarily implies that he contracted in her name, and hence the word "un

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

disclosed" cannot be taken to amount to an allegation of a distinct fact, but a general description of the principal for whom the husband was acting generally. In other words, it was a repetition in a very brief form of the redundant words contained in the paragraph first discussed. On a fair analysis of the complaint it comes to this: The pleader attempted in the words quoted to state a verbal contract, not in the precise terms in which it was made, but according to its legal substance and effect, as he might. It is stated that he made the contract as the agent of his wife. That allegation, prima facie, implies that he made it in her name, and so disclosed his agency and his principal. It is true the wife is described as an undisclosed principal, but this description does not change the substance or legal effect of the allegation any more than if the wife had been described by some other adjective. At most the use of that word. amounts to nothing more than to present an inconsistency or a contradiction in terms, and such a defect, if it exists, furnished no basis for a demurrer. There is no allegation of fact in the complaint that the husband in any manner contracted for himself or otherwise than as agent for his wife, or that he omitted to disclose his agency or his principal, and without some distinct allegation of one or more of these facts the court cannot fasten upon a single word descriptive of his wife and seek to construct by some very refined process of argument a contract binding upon the husband. Mere recitals or words of description do not constitute affirmative allegations of fact, such as are required in pleading. There is no allegation in the complaint that the husband ever violated any contract that he ever made otherwise than as the representative of his wife, unless, indeed, there is a joint breach charged, which will be referred to presently. As the argument to sustain the demurrer rests upon the proposition that it appears upon the face of the complaint that at the same moment of time two several contracts were made with the plaintiff, with respect to the same subject

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