The defendant McNally contracted by a written instrument not under seal with one Hale for certain building materials, to be used in the erection of a school building for the city of New York. In making the contract,.although Hale did not mention or refer to the plaintiff, he acted for it, which fact McNally at the time did not know. The materials, by different shipments, were delivered by the plaintiff to McNally, and in each instance a bill rendered direct to him.
The contract price for the materials delivered was $4,814, which sum, with the exception of one check for $150, McNally paid to Hale, or upon his orders. This sum Hale kept, with the exception of a small amount. The plaintiff demanded payment from McNally, *135and he having refused to pay, plaintiff filed a notice of a mechanic’s lien, which was subsequently discharged by the defendants giving the usual bond for that purpose, with the defendants McCarthy and Loonie as sureties. Thereafter this action was brought to recover the contract price of the materials delivered from McNally and from the other two defendants as sureties upon the bond.
The complaint, in substance, alleged the foregoing facts. McNally, alone, interposed an answer, which was substantially a general denial of the allegations of the complaint, coupled with an affirmative allegation that the contract for the materials was with Hale and that he dealt with him as principal, and not as agent; that he had paid him the amount called for by the contract, and that at and prior to the time such payments were made, he had no knowledge that Hale represented the plaintiff, or that the plaintiff claimed to be the principal in the sale and delivery of the materials referred to.
The learned justice sitting at Special' Term held after the trial had before him, that McNally had the right to deal with Hale as principal until he had notice of a claim by the plaintiff and that such notice was not given until the 14th of December, 1897. At that time, the defendant had paid to Hale $2,450, and the plaintiff was entitled to recover only the difference between that sum and'the $4,814, the amount called for by the contract, and judgment was directed against the defendants for that sum. From this judgment all of the defendants have appealed.
The defendants McCarthy and Loonie having made default in pleading, were not in a position to appeal from the judgment, and, therefore, so much of the appeal as relates to them must be dismissed ; and as to the defendant McNally, we are entirely satisfied, after a careful consideration of the record, that the judgment is right and should be affirmed.
There is an abundance of evidence to sustain the finding that all payments made after the 14th of December, 1897, were made by McNally with knowledge of the plaintiff’s claim. On that day the plaintiff wrote McNally the following letter : •
“ Montgomery, Lycoming Co., Pa., Dec. 14¿/¿, 1897.
“ Harry McNally, Esq., New York, N. Y.:
u Dear Sir.— Won’t you please send. us a check for $1,000 or $1,500, on your account, by return mail ? At the present time we are *136very much pressed for money and whatever you can send us we will consider it a special favor.
“ Hoping to hear from you by return mail, with a good check, we remain,
“ Y ours, truly,
“ HENDERSON, 'HULL & GO., Lim.”
The plaintiff, as before stated, at the time of each shipment of the materials (and there were somé seventeen or eighteen shipments in all) mailed a bill to McNally, and he did not deny that he received them. All he would say on that subject was that he did not personally get them, but that his carpenter, who had charge of the building, might have done so, But that he, or some one representing him, received the bills, or some of them, is apparent from what transpired at the trial. There the plaintiff’s .counsel requested the defendants’ counsel to produce the bills, and in response- the defendants’ counsel said “ These are what we have got ” — at the same time handing several bills to the plaintiff’s attorney, and stamped upon the face of each one of these bills, in red ink, was the statement, “No settlement will be alloAved unless made payable to the order, of Henderson, Hull & Co., Lim.”
It is not disputed that after the receipt'of the letter of December fourteenth McNally paid to Hale, or upon his orders, the amount for which judgment .was directed— $2,364 — and of this sum something like $1,100 was paid after the notice of lien was filed, and a portion of that after the commencement of this action.
After McNally had notice of the plaintiff’s claim, he had no right to make further payments to Hale, and the payment to him did not discharge his obligation to the plaintiff. The fact that the contract was made in Hale’s name, and- that the plaintiff was not mentioned or referred to in it, did not, after the receipt of such notice, change the legal rights of the parties or relieve McNally from dealing with the plaintiff- as principal.
One cannot obtain the property of another through the medium of a third party and escape paying for it on the ground that he dealt with the third party as principal and not as agent. This is elementary. The general rule is that an executory contract, in writing, not under seal, executed by an agent, and within the scope of his authority, may be enforced by the principal, although exe*137cuted in the name of the agent, and this whether he describes himself as agent or not, or whether the principal is known or unknown. (Nicoll v. Burke, 78 N. Y. 580; Ludwig v. Gillespie, 105 id. 653; Brady v. Nally, 151 id. 262; Ford v. Williams, 21 How. [U. S.] 287; Story Agency, § 396.)
The letter of December fourteenth, taken in connection with the other circumstances, was sufficient notice to McNally that the payment for the materials, under the contract, should be made to the plaintiff and not to Hale.
We have examined the other questions raised, but they do not seem to be of sufficient importance to require consideration here'.
It follows that the judgment must be affirmed" as to the defendant McNally, with costs, and the appeal dismissed as to the other two defendants, with costs.
Van Brunt, P. J., Barrett and Rumsey, JJ., concurred ; Ingraham, J., dissented.