It seems, clear that the contract between the defendant' and the G-arrigues Company, if it in fact had been made by the Garrigues Company, as agent for the plaintiff, might be enforced by the plaintiff as an undisclosed principal. Its performance involved no confidential relation, such as is necessary to take the contract out of the general rule.
Plaintiff had a right either to purchase these goods through *572■these brokers as its agents or to make a contract to purchase from these brokers,, leaving them with the .responsibility ©f sellers. Plaintiff elected, to. adopt the. latter course, as clearly appears from the contract made, Exhibits “0” and “ D.” Exhibit ‘ ‘ A, ” which is the contract between the brokers and the defendant, while1 signed by the Charles E. Gaiuigues Company, brokers, is made in behalf of the 'Charles- E". Garrigues Company,. and: the. acceptance is- signed- by the-CharlesE.. Garrigues Gompany notas' brokers:. Under-the- contract :a-a made between the plaintiff and the Charles E. Garrigues Company, plaintiff could compel performance bythe Charles FI Garrigues Company whether or not. the defendant, defaulted in. its contract with the Garrigues-Company. If the- Gmuiguea -Company were simply the agent of the plaintiff" to- make tbis'.-eomtraet,. it incurred no such liability. ' So that the- form of the contract made with the Garrigues Company,, whether ;as .agent" or as independent contractor, made a material difference in the rights .o£ the. parties between themselves;: and,, having ¡eJ-eetecLfo deal with the . 'Garrigues Company through an independent contract,, there can De no privity between the plaintiff and the defendant, from whom the Garrigues.-Company did in fact make its purchases, to fulfill its contract with, the plaintiff'. .The complaint was, therefore, properly dismissed and the judgment should be affirmed, with costs. ■ _
All concurred, except Kellogg, J., dissenting in memorándum. in which Betts, J..,. concurred..