FIFTH DEPARTMENT, OCTOBER TERM, 1887. plaintiff was entitled to a verdict. We will first consider whether the plaintiff may recover for the work and labor and materials furnished in the construction of the house, so far as the same was done and performed in pursuance of and according to the terms of the written contract. As the contract was in writing and under seal, and was not executed in the name of the defendant as principal, and it does not appear on the face of the instrument that the same was made in her behalf, no recovery can be had against her in an action founded upon the contract. To render the principal liable where the contract is under seal, made in fact by an agent or by an attorney, it must be in form in the name of the principal. (Briggs v. Partridge, 64 N. Y. 357; Schaefer v. Henkel, 75 id., 378; Huntington v. Knox, 7 Cush., 374; Squier v. Norris, 1 Lans., 282.) Oral evidence was incompetent for the purpose of proving that the defendant was the principal, and that she ratified the agreement after its execution for the purpose of establishing her liability thereon. The reasons upon which the rule is founded and the legal impediment in the way of enforcing the agreement against the principal, are considered and elaborately stated in the cases cited, and there is no occasion for repeating them in this connection. As to the position assumed by the plaintiff on the trial, as to his legal rights founded upɔn the facts which he offered to prove, we are not fully advised, as the case does not disclose, whether he sought to enforce the contract or to recover the value of the work or labor or material furnished upon an implied contract, wholly outside of the agreement and based upon the facts which he offered to prove. If the plaintiff intended to stand on the contract alone, and to recover for a breach of the covenants contained therein, then he was properly nonsuited. But it cannot be said with certainty, that that was his position. In the first paragraph of the complaint, in stating the cause of the action, no reference was made to any written agreement, and it was sufficient and proper in form to enable the plaintiff to recover on an oral agreement made by her agent in her behalf. Under the second count, the plaintiff could recover upon implied assumption for the work and labor and material furnished as therein specified. Upon the facts which the plaintiff offered to prove, we think that the plaintiff may pass by the written agreement and recover upon FIFTH DEPARTMENT, OCTOBER TERM, 1887. an implied promise for the work and labor done and material furnished, as the same was done for the benefit of the defendant, and with her consent and approbation; it is fair that she should pay the plaintiff for his work and labor and the material which he furnished to improve her own property, as the same was done with her consent, and she now enjoys the benefit and the advantages derived therefrom. We We may refer to some elementary and undisputed principles as bearing upon the proposition. It is well settled, where an oral contract is made by an agent who does not disclose his principal and makes and concludes the agreement in his own name, that the other party may, at his election, disregard the form of the contract and enforce the same against the principal, and this rule applies to all contracts which the law does not require to be in writing. (Meeker v. Claghorn, 44 N. Y., 351; Beebee v. Robert, 12 Wend., 413; 1 Am. Lead. Cases, 607.) Under this rule, where the sale is to an agent, the principal, though undisclosed, is liable for the purchase-money, because the title to the property vests at once in the principal, and creates a legal liability on his part for the value of the goods sold and delivered. The principle, as extracted from a large number of cases decided in this and other States, is stated by the author of the American Leading Cases (vol. 1, p. 611), as follows: "This liability of an undisclosed principal is not confined to sales, but exists in all cases of considerations executed for the benefit of the principal from which a liability in general assumpsit is raised by law; as in cases of money received by, paid for or loaned to an agent, in a matter directly concerning the business of the principal, enuring to his profit." (Tiernan v. Andrews, 4 Wash., 474; Bank of Rochester v. Monteath, 1 Denio, 402; Merchants' Er. Bank of Macon v. Cen. Bank of Georgia, 1 Kelly [Geo.], 418; Ins. Co. of Penn v. Smith, 3 Wharton, 521.) In Allen v. Coit (6 Hill, 320), the defendants' agents, in their own name, drew a bill upon a third party, in which Allen, the plaintiff, was named as a payee, and which he indorsed for the accommodation of the defendant. The bill went to protest, and Allen paid the same and brought suit against the defendant; and to a declaration, containing the usual money count, he attached a notice that he would give in evidence the bill of exchange and set HUN-VOL. XLVI 21 FIFTH DEPARTMENT, OCTOBER TERM, 1887. out a copy thereof; and it was held that the defendants were not liable upon the bill, because they were not parties thereto; but that the plaintiff might pass by the bill and rest his right of recovery upon the fact that he had paid money for the use of, and benefit of, the defendants, and with their implied consent. In Briggs v. Partridge (64 N. Y., 357), in discussing the question then under consideration, ANDREWS. J., said: It "must now be deemed to be the settled law of this court, and which is supported by high authority elsewhere, that a principal may be charged upon a written parol executory contract, entered into by an agent in his own name, within his authority, although the name of the principal does not appear in the instrument and was not disclosed, and the party dealing with the agent supposed that he was acting for himself; and this doctrine obtained as well in respect to contracts which are required to be in writing as to those where a writing is not essential to their validity." The cases cited in support of the proposition indicate the classes of cases in which the party to the agreement may pass by the written contract when it does not purport on its face to be made in behalf of the principal, and prove the facts and circumstances connected with the making of the agreement, for the purpose of establishing the liability of the principal. In Coleman v. First National Bank of Elmira (53 N. Y., 388) the plaintiff went to the defendant's bank for the purpose of making a deposit of a sum of money, and left the same with the teller and informed him that he wanted interest upon it; and thereupon the teller, without anything further being said, handed to him a certificate of deposit, upon the face of which it appears that the deposit was made with one S. R. Van Campen personally, who was at that time the president of the bank; nor did the certificate indicate upon its face that the deposit was made with the bank; and the court held that the real issue was whether the bank or Van Campen was the depositee. Unexplained, the fact that the plaintiff accepted the certificate of Van Campen was strong evidence that the bank was not a party to the transaction; but it was evidence only, and was subject to explanation by parol proof without violating any rule of evidence. The court further said: "The rule does not preclude a party, who has entered into a written contract with FIFTH DEPARTMENT, OCTOBER TERM, 1887. an agent, from maintaining an action against the principal upon parol proof that the contract was made in fact for the principal, where the agency was not disclosed by the contract and was not known to the plaintiff when it was made; or where there was no intention to rely upon the credit of the agent, to the exclusion of the principal. Such proof does not contradict the written contract. It superadds a liability against the principal to that existing against the agent. That parol evidence may be introduced in such a case to charge the principal, while it would be inadmissible to discharge the agent, is well settled by authority." In the same case it is also remarked: "One who deals with an agent is not concluded from resorting to the principal unless it distinctly appears that, with full knowledge of all facts, he elected to take the sole responsibility or the agent, and that he designed to abandon any claim against the principal." A recovery against the bank was upheld upon the ground, that the evidence tended to support the fact, that the plaintiff intended to make a deposit with the bank and did not receive the certificate of deposit, intending to rely upon the credit of Van Campen, the agent of the bank, to the exclusion of the principal. As a test that the defendant is liable for the work and labor and materials furnished, suppose the defendant had authorized her husband, as her agent, to borrow in her name and on her account, a sum of money, not authorizing him to execute any written promise in her name for the repayment of the loan, and in pursuance of such authority he had borrowed a sum of money of a third party, who was ignorant that he was acting as agent and executed in his own name a promise under seal to repay the loan himself, and had delivered the money received over to his wife, his principal, can there be any doubt but that she would be liable in an action for the money had and received? The authorities are abundant that the lender could pass by the special agreement made by the agent and sue for the money loaned and advanced, upon an implied promise to repay the money which she had received from the loaner by the hand of her agent. (Taintor v, Prendergast, 3 Hill, 72; Am. Lead. Cases, vol. 1, p. 615.) There is no difference in the principle between the cases supposed and the one before us. The contract which the agent did make was not binding upon the defendant, because he put it in an authorized 46 164 123a 226 46 164 75 392 46 164 145a 324 FIFTH DEPARTMENT, OCTOBER TERM, 1887. form and the same could not be enforced against her for the reason stated in the case already cited. If these views are correct, then the plaintiff made a case which entitled him to recover for the value of the work and the labor done and performed towards the construction of the house. As to the alleged extra work, the evidence offered was sufficient to make a case for the consideration of a jury, for it tended to prove that the same was done at the defendants request and for her benefit and the improvement of her separate estate. (Fowler v. Seaman, 40 N. Y., 592.) The position of the defendant, as stated in her answer, that the contract was made by Emery, in his own name as principal and for his own benefit, and that the building when completed would be his own property and not that of the defendant, would constitute a perfect defense. This presented an issue which was to be determined upon all the evidence which the parties might produce for the consideration of the jury. The judgment and the nonsuit should be set aside, and a new trial granted, with the costs to abide the event. SMITH, P. J., HAIGHT and BRADLEY, JJ., concurred. Motion for new trial granted, costs to abide event, and the judgment entered as security for costs is vacated. ISABEL YOUNG, BY GUARDIAN, APPELLANT, v. GEORGE W. Juror — disqualified in civil actions if in the least degree biased or prejudiced — action for assault and ravishment — specific acts of the plaintiff tending to show lack of virtue and chastity admissible on the question of damages — admissibility of the opinion of a physician as to whether pregnancy is likely to follow ravishment — when the general good character of the plaintiff cannot be proved by her -the failure of the plaintiff to disclose the assault to friends, after a reasonable opportunity to do so, of itself tends to impeach her veracity. Upon the trial of this action, brought to recover damages for an alleged assault and battery upon the person of the plaintiff, and for forcibly defiling and carnally knowing her, John Crouse, one of the jurymen, whose name was drawn from the box, having been challenged by the defendant for favor, testified that he knew the parties; that he had partially formed an opinion; that what he had |