This action was brought to recover for fourteen insertions of defendant’s advertisements in the magazine or paper of plaintiff’s assignor, to wit, “ The Lafayette College,” a weekly publication. It is *405admitted that the advertisements were inserted, and that neither the plaintiff nor his assignor has been paid. The advertisement advertised defendant’s business and the services rendered in connection therewith were solely for his benefit.
The defense is that the contract was made with the M. B. Kohler Advertising Agency and that the plaintiff’s assignor extended the credit to the H. B. Kohler Advertising Agency and not to the defendant; that the defendant had no dealings with the plaintiff’s assignor.
The contract introduced in evidence does not disclose the name of the defendant, but purports to be made between the plaintiff’s assignor and the “ H. B. Kohler Advertising Agency,” so that it"appears upon its face that it is an agency that is' making the contract. The contract bears upon its face indisputable evidence that the advertising contracted for is for the benefit of some other person than the H. B. Kohler Agency. This being so, the plaintiff’s assignor was entitled to assume that there was an undisclosed principal other than the advertising agency. This contract bears no date. Previous to its execution, however, the H. B. Kohler Agency wrote to plaintiff’s assignor stating that it could give the plaintiff’s assignor a “ worth - while - contract ’’ for one of its clients, the “ National Authors Institute,’’under which name defendant was doing business. The uncontradicted evidence of Mr. Latham shows that defendant was not ignorant of the employment of plaintiff’s assignor by the Kohler agency and that before the completion of the advertising he requested the full amount of the bill of plaintiff. If the defendant was known to the plaintiff’s assignor to be the principal in the transaction and the Kohler agency his agent, the defendant alone would be liable to plaintiff, unless the plaintiff’s assignor gave credit exclusively to the *406Kohler agency, in which event, of course, the Kohler agency alone would be liable. Meeker v. Claghorn, 44 N. Y. 349; Foster v. Persch, 68 id. 400.
The defendant having received the full benefit of the advertising, the agent virtually acting for both parties and the agent having disappeared and become irresponsible, it is difficult to see the justice of the rule which allows the real beneficiary to escape payment and deprives the plaintiff of the fruits of his labor simply because he gave credit to the agent instead of the principal. Had the plaintiff’s assignor not known who the real party in interest was, he might have held him legally liable upon discovering him, notwithstanding he had given credit exclusively to the agent. Meeker v. Claghorn, supra; Foster v. Persch, supra. This rule which seems to be harsh and rather unreasonable in its distinction is somewhat modified by the rule recognized in both cases, that the evidence that the credit was given to the agent must be conclusive and it must be shown that the plaintiff intended to look solely to the agent for his pay; and that the plaintiff has the affirmative in establishing this fact. There is no proof in the case that plaintiff charged the work to the Kohler agency, nor is there any affirmative proof that plaintiff gave credit solely to the Kohler agency. There are letters from the plaintiff to the agency, it is true, demanding payment, but they do not indicate, and are not sufficient in our judgment, to establish affirmatively that the plaintiff charged the work to and looked exclusively to the Kohler agency for his pay. As a matter of fact, the uncontradicted evidence of the witness Latham, detailing the conversations with defendant, rather negative such a proposition, and taking the uncontradicted evidence of the witness Latham and the facts disclosed by the record we are of the opinion that the case is fairly within *407the rule laid down in the case of Foster v. Persch, supra, and that the judgment should be reversed.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Page, J., concurs.