(dissenting):
. The Garrigues Company were brokers for the sale of nitro glycerine and other explosives. Their purchases were never for •their own use; they had dealt extensively with the defendant and had bought much glycerine from it, some of which to-defendant’s knowledge- was bought for-and' -shipped', tobheplaintiff.. Defendant allowed! the-company abroker’-s comna>Bsi©nion',a/Z"purcl(iases;. Usually the’ memoranda of purchase .indicated the- person for whom the1 brokers, were acting; .and. other times, usedi the Garrigues-name-or a fietitiousmaane- if. it was: desirable not.-to- make the identity of the purchaser known-.. Theevidemce is-conclusive that the" glycerine- in question was. "bought by the Garrigues *573Company for the plaintiff, and immediately after the contract was executed the defendant had knowledge of the fact and continued to fill the contract. The memorandum signed by the G-arrigues Company has the word “brokers ” attached to the signature,. thus indicating that it was acting as agent for an undisclosed principal. Thé mere fact that the Garrigues Company sent a memorandum to the plaintiff for its approval, in a letter which stated that the glycerine had "been bought for plaintiff’s account and “ duly accepted by us, with duplicate for your acceptance, ” cannot change the relations of the parties. Within the familiar rule of Nicoll v. Burke (78 N. Y. 580) and Milliken v. Western Union Telegraph Co. (110 id. 403), the plaintiff may recover upon the contract. Many times the weekly orders were not given, but subsequent orders were honored when given. By disregarding time the defendant had set the time running and could not thereafter require strict performance without some previous notice. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs .to the appellant to abide the event.
Betts, J., concurred.
Judgment affirmed, with costs.