The principles of law applicable to this case are elementary and undisputed. If the defendants were known to be the principals in the transaction, and Shall only their agent, then they are alone responsible, unless credit was given exclusively to the agent, in which event the agent alone was responsible. If, however, the defendants were not known to be the principals, and credit was at the time given to Shall, who was in fact an undisclosed agent, then the vendors could hold for payment, at their election, either the agent or the principals. If Shall was not in fact the agent of the defendants, and furnished these articles to them upon his agreement with them, then the defendants are not responsible to the plaintiff. (Pentz v.Stanton, 10 Wend., 271; Thompson v. Davenport, 9 B. Cres., 78; Story on Agency, §§ 267, 446, 447, 423; 1 Am. Lead. Cases, 607.)
Keeping these principles of law in view, this case involves only questions of fact. The defendants can claim exemption from liability upon only one of two grounds: 1. That Shall was not their agent, and that the vendors dealt with him as principal; or, 2. That the vendors knew the defendants to be the principals, and gave the credit exclusively to the agent.
As to the first ground, there is some evidence tending to show that Shall was the agent of the defendants, and acted as such. It does not appear that he had a contract to erect the building. He was simply the architect to furnish the plans, and order certain materials, and probably to superintend the construction, for all of which he was to have a certain percentage. His position as architect, and his relation to the defendants, were such as to authorize a pretty strong inference, that, in ordering material for the building, he was simply acting as agent for the defendants. One of the witnesses, a clerk of the vendors, testified that he had an interview with one of the defendants in New York, in which he *Page 352 said "that they employed Mr. Shall to make the plans and specifications for the building, for which they were to pay him a certain percentage; that after the plans were made, they employed him to order for them the stone, iron, carpenter and mason work, for doing which they were to pay him a percentage." In the first letter which Mr. Shall wrote to the vendors, he informed them who his principals were, and that they were a "highly responsible firm." We must assume that Shall was in fact the agent of the defendants, and that the vendors knew it.
As to the second ground, the evidence should be quite clear that the vendors gave exclusive credit to the agent of known principals, before we can hold the principals exempt from liability. In all cases, where the principals seek exemption upon the ground that the credit was exclusively given to their agent, this should clearly appear, and they have the affirmative to show it; the natural presumption being, in all cases, that credit is given to the principal rather than to the agent. It is sufficient to say upon this branch of the case, that there is no conclusive evidence that the credit was given by the vendors, exclusively to the agent, and that they intended to look to him solely for their pay. It is true, that upon the ledger and day-book of the vendors, the articles were charged to Shall, and while this furnishes strong evidence that they were furnished upon his credit, it does not show it conclusively. The plaintiff gave some explanation, tending to weaken the effect of this evidence, and its weight under all the circumstances of the case, was for the referee.
The most that can be properly said in behalf of the defendants is, that the plaintiff made a very weak case. But if the circumstances of the case, and the evidence, and the legitimate inferences to be drawn from them tend in any degree to uphold the decision of the referee, we cannot disturb it; and it seems to me that this is such a case.
There is no sufficient evidence that Shall was the agent of the vendors, to receive payment for the articles furnished, in such a sense as to bind them by the payment the defendants *Page 353 made to him, even if there is any competent evidence of such payment.
Within numerous decisions that have been made in this court and also in the Supreme Court, the plaintiff, under the absolute assignment in writing to him, is the legal holder of the claim against the defendants, and the real party in interest as plaintiff in this action.
I am, therefore, of the opinion that the judgment should be affirmed with costs.
All concur for affirmance, except LEONARD, C., not sitting.
Judgment affirmed with costs.