This is a most singular complaint. The plaintiff claims to have had a valid contract with the Emma Willard School to furnish the stone, which he did thereafter furnish under his contract with the defendant, at one dollar per square foot; that upon representation by the defendant that, the architects of the building would not consent that more than sixty cents be paid therefor, and without inquiring of the architects, the plaintiff made a contract with defendant to furnish the stone for sixty cents per square foot. The stone was furnished, for which he was paid the contract price. He now brings an action against the defendant for the additional forty cents, on the ground that defendant’s representation that the agent of the Emma Willard School and the architects would not consent to the payment of more than sixty cents was fraudulently made, and that he relied thereupon in making the- contract for the lesser sum. There is no statement as to the relations between this defendant and the Emma Willard School, as to whether this defendant was constructing this building for the Emma Willard School as independent contractor, or whether it acted as the agent of the Emma Willard School. There is no statement of any authority in the architects to consent or refuse to the payment of any specific sum for this stone, and it requires a vivid imagination to find even “ foreshadowed,” as stated by Mr. Justice Kellogg, much less alleged, any facts which would charge any liability upon this defendant. The facts alleged in defendant’s answer give to plaintiff no assistance.
*438In my judgment there are two fatal objections to this complaint. The first is, that the representation does not appear to have been material, because it does not appear that the architects or the agent of the Emma Willard School' had any authority to break a contract which had been entered into between the plaintiff and the Emilia Willard School, or any authority to dictate in any manner whatsoever what price should be paid for stone which was placed therein. No such authority can be implied merely from the relationship of agent or architect. An objection to the price made by a third party not shown to have power to act is not material to influence the making or surrender of a contract. The second objection to this complaint is, that upon its face the plaintiff has suffered no damage, but still has his claim against the Emma Willard School for the moneys due upon the contract. If this defendant was the agent of the Emma Willard School the contract for the lesser price fails to vary the original contract for the greater price for lack of consideration. If it was a separate contractor the plaintiff may still hold the Emma. Willard School upon the original contract, providing plaintiff has been in any way induced to abrogate the same by any false representations. The Emma Willard School could not accept the surrender of plaintiff’s contract without adopting the means by which such surrender was induced, and if fraudulent the surrender will be deemed ineffective, and the original contract will remain in full force. Plaintiff has furnished the stone, as provided for in the original contract with the Emma Willard School. His making a contract with a third party to accept less for the stone in no way varies the original contract with the Emma Willard School, at least, without showing some” privity between the third party and the Emma Willard School; and even if privity be shown where such subsequent promise was procured through fraudulent misrepresentation. I, therefore, vote for the affirmance of the order.
Order reversed, with ten dollars costs and disbursements to the appellant, and the motion for judgment upon the pleadings denied, with ten dollars costs to the plaintiff.