Tew v. . Wolfsohn

*274 O’Brien, J. The plaintiff sought to recover damages from the defendants, husband and wife, for breach of a contract. The plaintiff alleges that he is a professional singer and that a contract of employment was made with him. The husband alone has demurred to the complaint upon the sole ground that several causes of action-have been improperly united in the complaint. ’ The court overruled the demurrer and the order was affirmed on appeal. The case comes here upon appeal with a question certified, which in substance is, whether the complaint is open to the objection stated in the demurrer. There are numerous questions that sometimes arise upon pleadings with which we are not at all concerned in the disposition of this case. The complaint may be defective in clearness of statement or in logical order, and the plaintiff may not be able at the trial to prove his case as stated. The objection must be determined upon a view of the whole complaint reasonably construed with reference to the facts stated and every inference flowing from such facts. We are not to fasten upon a word, a phrase or a sentence in the complaint and give it a meaning which it will not fairly bear in order to sustain the demurrer. Every reasonable and fair intendment is to be made in support of the pleading. (Zabriskie v. Smith, 13 N. Y. 330 ; Marie v. Garrison, 83 id. 14, 23 ; Sanders v. Soutter, 126 id. 193 ; Sage v. Culver, 147 id. 241.) It may very well be that the complaint does not state any cause of action whatever against the husband, but he raises no such objection now, but reserves it, as he may, to be made at the trial. His objection really is that it does contain a good cause of action against him. It is provided by section 497 of the Code of Civil Procedure that when a demurrer to the complaint is allowed on the ground that two or more causes of action have been improperly united, the court may direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. This plainly implies that, in order to sustain a demurrer on this ground, the complaint must contain two or more causes of action so well stated and *275 so complete and perfect that the court can divide them into the necessary number of actions. It will not do to say that the complaint contains one good cause of action and some vague and ambiguous words or expressions that by construction may be made to point to another cause of action. All that must be corrected, not by demurrer, but by motion. So that, in order to sustain the demurrer in this case, we must find two causes of action plainly stated, each in itself complete and perfect upon a fair and reasonable construction of the language employed. The complaint in form and upon its face does not profess to state more than one cause of action. It all relates to one subject, although divided into eight clauses or paragraphs, but no reference is anywhere made to a second cause of action as such. The only words that can possibly be claimed to' point to more than one cause of action are to be found in the second and third paragraphs, which read as follows, the italics being our own : “ That the defendant Ilenry Wolfsohn conducts a musical bureau for the purpose of securing concert and recital engagements for high-class artists, which business is owned by his wife, the defendant Paula Wolfsohn, the defendant Henry Wolfsohn acting as her agent, although said Henry Wolfsohn pretends to he conducting said agency on his own hehalf and without disclosing his said wife as principal.” Here we have a clear and distinct allegation of a fact, namely, that the husband is conducting a certain business as agent for his wife, the business being owned by her. This is an admitted fact that has a material bearing upon the construction of the complaint. The truth and the fact being that the husband is conducting the wife’s business as her agent, the other words in italics' are immaterial, irrelevant or redundant and could be stricken out on motion. So long as the fact was that the husband was the agent of the wife in the conduct of her business it was of no consequence that he pretended to be something else. The husband’s pretenses add nothing to, nor do they take anything from, the significance of the conceded fact that he was the agent of his wife, so that we may pass over this paragraph as *276 containing nothing except a very proper allegation that the husband was the business agent of the wife. The redundant words referred to contain no element of a cause of action and may be rejected as the merest surplusage. The next or third paragraph is the one upon which the learned counsel for the demurring defendant has sought to construct a second cause of action, and that reads as follows : “ That on or about the 7th day of June, 1901, a contract was entered into between plaintiff and said defendant Henry Wolfsohn, acting as agent for his undisclosed principal Paula Wolfsohn, whereby plaintiff appointed said Henry Wolfsohn his sole manager for America and Canada for a term of one year, agreeing to pay said Wolfsohn ten per cent of all plaintiff’s engagements, and also agreeing to submit to him all his business communications and not to accept any engagements without his consent.” The argument in support of the demurrer rests entirely upon the use of the single word “ undisclosed,” in the foregoing quotation. If that word is rejected, then the paragraph would contain a plain statement that on a certain day the plaintiff and the husband, acting as agent for his principal the wife, entered into a certain contract with respect to a certain subject-matter which is more particularly described. It is alleged that whatever contract the husband made, he made it as agent for his wife. That was the capacity in which he made the promise and that is the capacity in which the plaintiff accepted it. The word “ undisclosed ” may be treated as a mere descriptio personae and of no more consequence than if the pleader had desci’ibed the wife, who was the principal, by any other adjective. The parties to the contract are stated to be the plaintiff on the one part and the husband as agent on the other, and being such" agent and carrying on the business for his wife as alleged, he had the power to bind her by the contract and on the face of the complaint she is bound. So it is plain that the second cause of action in. this complaint, if there be one, must be built up entirely upon the use of the word “ undisclosed ” and that I think. would be quite too *277 narrow and technical a construction of the language of the complaint. The learned counsel for the demurring defendant has made an ingenious and refined argument to prove that the agent who concededly acted as agent for his principal in making the contract, at the same time omitted to disclose his principal. If it be true, as alleged, that the husband acted as agent of the wife in making the promise, it must have been accepted by the plaintiff in the character in which it was made, and so it is rather difficult to see how it could be possible that the principal still remained undisclosed. The rule of law applicable to such a case was stated by Judge Martin in De Remer v. Brown (165 N. Y. 419) as follows: “ A person, even though making an agreement for another, makes himself personally liable thereon if he contracts in his own name without disclosing his principal, although the other party to the contract may suppose that he is acting as agent.” As I understand the rule thus expressed the agent becomes personally liable when he contracts in his own name without disclosing his principal. But in this case the husband did not contract in his own name. He contracted, if the statement of the complaint be true, as agent for his wife, which necessarily implies that he contracted in her name, and hence the word “undisclosed” cannot be taken to amount to an allegation of a distinct fact, but a general description of the principal for whom the husband was acting generally. In other words, it was a repetition in a very brief form of the redundant words contained in the paragraph first discussed. On a fair analysis of the complaint it comes to this: The pleader attempted in the words quoted to state a verbal contract, not in the precise terms in which it was made, but according to its legal substance and effect, as he might. It is stated that he made the contract as the agent of his wife. That allegation, prima faoie, implies that he made it in her name, and so disclosed his agency and his principal. It is true the wife is described as an undisclosed principal, but this description does not change the substance or *278 legal effect of the allegation any more than if the wife had been described by some other adjective. At most the use of that word amounts to nothing more than to present an inconsistency or a contradiction in terms, and such a defect, if it exists, furnished no basis for a demurrer. There is no allegation of fact in the complaint that the husband in any manner contracted for himself or otherwise than as agent for his wife, or that he omitted to disclose his agency or his principal, and without some distinct allegation of one or more of these facts the court cannot fasten upon a single word descriptive of his wife and seek to construct by some very refined process of argument a contract binding upon the husband. Mere recitals or words of description do not constitute affirmative allegations of fact, such as are required in pleading. There is no allegation in the complaint that the husband ever violated. any contract that he ever made otherwise than as the representative of his wife, unless, indeed, there is a joint breach changed, which will be referred to presently. As the argument to sustain the demurrer rests upon the proposition that it appears upon the face of the complaint that at the same moment of time two several contracts were made with the plaintiff, with respect to the same subject-matter, one binding the wife alone and the other the husband alone, it is just as essential for the defendants’ purpose that the complaint should charge a several breach on the part of both as the making of a several contract, and clearly it does not charge either the one or the other. If the complaint states anything more than a single cause of action for breach of the contract and that against the wife only, it is a single cause of action against the husband and wife jointly, and that theory would be equally fatal to the demurrer. It was quite possible and competent for the husband when making the contract, to bind himself and his wife jointly. In that case there would be but one contract and but one cause of action, and possibly that was the theory upon which the learned counsel for the plaintiff constructed the complaint. It may be that he will not be able to establish such a contract *279 at the trial. But the question here is whether such a contract ■ is not stated on the face of the complaint. After stating the making of the contract as above described, the complaint avers that the- defendants agreed on their part to arrange a concert tour for the plaintiff, to secure engagements or bookings for him in advance, arrange dates, routes, etc., and do all the preliminary work required of a manager of a high-class artist. Now this amounts to an allegation that the defendants jointly undertook to do what is therein alleged, and that the plaintiff accepted the promise in that character. The contract was a verbal one and an allegation that the defendants agreed to do certain things amounts, or may amount, to a statement of a joint contract. ■ Then again it is alleged that the defendants committed a breach of the contract in refusing to perform its terms and conditions, and have not allowed the plaintiff to do the things which they engaged him for. It is difficult to see how the defendants jointly could have committed a breach of the contract unless they made it in that capacity. Clearly the meeting of minds charged in the complaint was between the husband as agent for his wife on the one side and the plaintiff on the other. As already remarked the complaint states what took place only in substance and according to its legal effect, and then it proceeds in these words: “ Whereby defendants agreed on their pari” etc. It is then alleged that the defendants refused to make engagements for the plaintiff to sing at concerts and canceled engagements already secured in violation of the agreement. Then' it is stated that the defendants induced the plaintiff to pay to them the sum of $350 to be used in advertising, and that they have refused to account for the expenditure or to return that sum to the plaintiff. This is a distinct allegation of the payment of money to" the defendants jointly which, according to the allegations of the complaint, the plaintiff was entitled to have returned to him. So that upon any view of this pleading there is but one cause of action stated upon a contract either of the wife alone, made by her agent, or by husband and wife jointly. If it is *280 indefinite or uncertain in this respect the remedy to correct it is by motion and not by demurrer. I have, perhaps, discussed the question presented by this appeal at greater length than the importance of the question would seem to demand. It is due to the counsel on both sides to say, in conclusion, that if they had carefully studied how to inject vexatious questions into a very simple case, they could not have met with a greater measure of success than seems to be evidenced by this record. This remark applies equally to the form of the complaint and the form of the demurrer. I think on the whole that the case was properly decided below and that the order appealed from should be affirmed, with costs in all courts, with leave to the demurring defendant to answer on j>ayment of costs. The question certified should be answered in the negative.