#### HIRAM A. FORNEY v. BARTLETT SHIPP.

Where one contracts for work to be clone for another, without disclosing his agency, he is personally liable, although the workman finds out the agency after the contract is made, and before the work is begun.

Mutual promises constitute a sufficient consideration for the support of a' contract. Where an agent is liable on a contract made for the benefit of a third person, by reason of not disclosing his agency, he cannot avail himself of a debt due by the plaintiff to such third person, as a set-off.

ActioN of assumpsit, tried before Bailey, J., at a Special Term, July, 1857, of Lincoln Superior Court.

The evidence, was that defendant said he wished to employ the plaintiff to superintend the iron-works at Madison Forge ; that if he would undertake the business, he would give him §12,50 per month, as long as he continued to work ; to which the plaintiff agreed.

Accordingly, the plaintiff took charge of the iron-works, and the first entry he made in the book, in which he kept his account, was as follows: “ June 7th, 1852. Commenced work this day for ¥m. Shipp; employed by Bartlett Shipp, at $12,-50 per month.”

It was further proved, that plaintiff acted as superintendent about two years and six months, and during that time issued *528many cine bills, payable in iron, and signed the same as agent for "Wm. Shipp ; that lie also signed many receipts in the same way, and made entries in the book of accounts.as agent. It was further proved, that plaintiff sold iron, and iron-ware, to a large amount, for Wm. Shipp.

The court charged the jury that, if the defendant made the contract in his own name, and engaged himself to pay the plaintiff for his work, without disclosing the name of his principal, (if he had one), he would be responsible in this action, and the jury should so find; but if the defendant disclosed his principal, or if the plaintiff contracted with him, knowing that the defendant ¡was making the contract for, and on account of, William Shipp, and not for himself, he would be obliged to resort to the principal, and not to the agent, and the plaintiff in that case could not recover.

The defendant’s counsel asked the court to instruct the jury that, although the defendant contracted in his name without disclosing his principal, yet, if the plaintiff found out, after the contract was made, and before he commenced work, that he was actingforWm. Shipp, he could not recover in this action.

The court declined giving such instruction; and the defendant excepted.

The defendant relied upon the fact that the plaintiff had sold iron, and castings, to a large amount, belonging to Wm. Shipp, and insisted upon this counter claim as a set-off.

But the court instructed the jury that, this claim, in favor of Wm. Shipp, was not applicable as a set-off in this suit, against the defendant. Defendant again excepted.

There was a verdict in favor of the plaintiff, and judgment was rendered thereupon. Defendant appealed.

Lander and Avery, for the plaintiff.

Thompson and Ilolte, for the defendant.

Pearson, J.

There is no error. We are to assume from the verdict “ that the defendant made the contract in his own name, and engaged himself to pay the plaintiff for his work, *529without disclosing the name of bis principal.” The plaintiff having clone the work, why should not this contract be binding ?

It was said in the argument, that there was no consideration in respect to the defendant. The proposition is not true. The contract was supported by the consideration of mutual promises between the contracting parties.

The fact that the plaintiff “ found out, ” before he commenced work, that the work was to-be done for ¥m. Shipp, and not for.the defendant, (his father), was -immaterial; and his Honor properly declined to g'ive the instruction asked for. Suppose William Shipp to have been an infant, or a bankrupt, that did not discharge the plaintiff from his promise to do the work; therefore, it could not discharge the defendant from his promise to pay for it.

The ruling, in regard to the defendant’s availing himself of a set-off, by reason of a supposed balance due William Shipp, growing out of the sale of castings, was in strict accordance with the legal rights of the .parties. If William Shipp had made payments to the plaintiff, (as distinguished from a set-off), for, and on account of, his work, that would have presented a different question. But the fact that, the plaintiff (as was alleged), had sold castings for William Shipp, and had failed to account therefor, so as to give him a right to sue for an account, was properly excluded 'from the enquiry involved in the issues joined between the plaintiff and defendant.

Per CuriaM, ’ . Judgment affirmed.