Opinion
May, 1912.
Louis B. Williams, for appellants.
Bennett E. Siegelstein, for respondents.
The action was brought against the defendants for work, labor and services rendered and materials furnished at the instance and request of the defendants. The defendant Traynor in his answer admits that the work alleged in the complaint was done for him, and alleges payment. The evidence shows that the defendant Traynor made the agreement with the plaintiffs and that the bills therefor were made out in his name and delivered to him. He failed to establish the defense of payment and judgment was properly rendered against him.
It is sought to hold Unterberg as an undisclosed principal who has received the benefit of the work; but plaintiffs knew that Traynor was not the owner when they made their agreement with him, and they did the work solely on his credit. It does not clearly appear who was Traynor's principal. Each of the defendants denies in his answer that the defendant Unterberg was the owner, and sufficient proof was not offered by the plaintiffs to establish their contention in this issue.
There was a discount of ten per cent. to be paid by the plaintiffs to Traynor. If they were dealing with Traynor as a principal, and looking to him alone for pay, it was proper for them to make any discount they wished. If, however, Traynor was an agent for Unterberg and they were dealing with him in that capacity, giving credit and expecting to be paid by Unterberg, the agreement to pay ten per cent. on the agreed price would render the entire transaction void. Sirkin v. Fourteenth Street Store, 124 A.D. 384. Where there are two constructions possible to be placed upon a transaction, one of which would be illegal, and the other legal, the court will presume that the parties intended to act legally, and view the transaction from that standpoint.
The judgment will be affirmed as to defendant Traynor, with costs, and reversed as to defendant Unterberg, with costs.
SEABURY and LEHMAN, JJ., concur.
Judgment affirmed as to defendant Traynor, with costs, and reversed as to defendant Unterberg, with costs.