I am unable to agree in the affirmance of this judgment. Hale made a contract with McNally to furnish him with the articles, to recover for which this action is brought, for the sum of $4,814. In making this proposal, there was no indication of any kind that Hale was acting for the plaintiff, or for any one else. The proposal was in' writing, and is as follows : “ Revising my estimate of the Trinity A Avenue School, I propose to furnish, according to plans and specifications, window frames,” etc.,- for $4,814, delivered.
McNally accepted Hale’s offer by letter, saying: “I hereby accept your estimate for the Trinity Avenue School building of forty-eight hundred and fourteen dollars ($4,814.00) for frames, * * * according to plans and specifications. Please put the same in Avorlc at once and have ready as called for.”
Here avbs a personal contract betAveen McNally and Hale, by which Hale agreed to furnish articles specified for a sum of money. When this contract was made Hale had. no agreement with the plaintiff, but over a month after the contract was made Hale wrote to the plaintiff as follows: Please quote net figure f. o. b. Harlem River for the enclosed list No. 833.”
*138This inclosed list apparently was a list of articles which Hale had agreed to furnish to. McNally. On March twenty-sixth plaintiff wrole to Hale as follows: “ We find that the best we can do on these three lists would be $3,675.00, and there would be but little profit in it for us at that price.” In reply to that letter'Hale wrote as follows : “ I note what you say regarding the price on No. 833, and would be willing to give you the order at $3,675,. if you wish to handle it.”
On April first plaintiff wrote to Hale accepting Hale’s offer, saying : “We have decided to accept job 833 at $3,675.00. You will please send us prices at which to bill this, and also send us an acceptance to ns from Mr. McNally.”
It is quite evident that Hale,- in making this offer to McNally, did not make it as agent of the plaintiff. He made it as an individual offer, and the contract which was.made -between Hale and McNally was an individual contract of Hale’s by which he agreed to furnish McNally at a sum specified the articles described. To procure those articles Hale applied to the plaintiff, and the plaintiff agreed to furnish the articles to Hale at a price considerably less than that for which Hale had agreed to furnish them to McNally. Plaintiff requested Hale to procure from McNally an acceptance of the order, and from that it would, appear that the plaintiff understood that Hale had made the : contract with McNally. No such acceptance was given, but, on the contrary, McNally expressly refused to make any contract with the plaintiff, or. to deal with it in any way. Notwithstanding this the plaintiff went on and delivered the goods to McNally. The plaintiff, however, made no specific claim upon McNally that he was under any obligation to pay it any sum of money. Nor was there any contractual relations of any kind between the plaintiff and McNally, by which McNally became under any obligation to pay any sum of money to the plaintiff. There was no assignment of this contract between. Hale and McNally to the plaintiff. What the plaintiff agreed’ to do was to furnish Hale the goods which he (Hale) had contracted to furnish to McNally; and certainly at no time was McNally under any obligation to pay to the plaintiff any sum of money. He had refused to recognize it as a contractor; he had agreed to pay it no sum of money. The fact that it had furnished Hale with *139tlie materials to enable him to complete his contract with McNally would give it no lien upon the money that McNally was to pay to Hale until it had filed a mechanic’s lien under the statute. The request of the plaintiff to McNally on December 14, 1897, to send to the plaintiff a check for a thousand or fifteen hundred dollars “ ou your account by return mail” was certainly not a notice to McNally 'that Hale had transferred his contract to them; but in ansAver to that, McNally wrote to the plaintiff to say that he had made the contract with Hale, and was accountable to Hale for the amount,, having already paid Hale the sum of $2,450 on account. Here Avas the distinct statement of McNally to the plaintiff that he recognized Hale, and Hale only, as the person with whom he had a contract; that he accounted to Hale for the price, and that the plaintiff was to look to Hale. It did not appear that the plaintiff answered this letter or objected to this construction of the relations that existed between them, or notified McNally that subsequent payments must be made to the plaintiff. Thus, McNally had made a contract Avith Hale, and refused to recognize any one else as a contractor. Hale, Avhen he made the contract, was not acting, as agent for the plaintiff, nor did he make the contract on the plaintiff’s behalf, for it Avas over a mouth after the contract was made that the plaintiff consented to furnish the goods to complete Hale’s contract. The plaintiff never notified McNally that it Avas its contract, except so far as to ask him to send it money, which McNally refused to do, upon the ground that he had contracted with Hale and was responsible to Hale; and to that the plaintiff made no objection, and made no claim that McNally was responsible to the plaintiff, or should not pay Hale the amount of the contract price. Under these circumstances, I fail to see any relation between the plaintiff and McNally which would entitle the plaintiff to recover from McNally the amount of the price of the articles AA’hich Hale had contracted to deliver to him, and for which he had paid Hale.
I think the judgment should be reversed.
Judgment affirmed as to defendant McNally, with costs, and appeal dismissed as to other defendants, with costs.