majority">Landon, J. ;

The complaint alleges and the answer admits that the plaintiff sold and delivered to the defendant’s testatrix the milk in question.. The delivery was in February and March, 1892. The plaintiff alleges that the milk was reasonably worth two and a quarter cents per quart. The defendant alleges that it was sold and delivered' under a contract covering the year from April 1,1891, to April 1, 1892, and that by the terms thereof the defendant is entitled to •credit for overpayments made to plaintiff for the milk delivered in the months previous to February and March, 1892. The General Term upon a former appeal held that the defendant’s contention as to the terms of the contract was right. (77 Hun, 598.)

U pon the new trial the court, after the contract had been received in evidence, struck it out, and thus deprived the defendant of his defense. Exception was duly taken to this ruling of the court. The ground for striking it out appears to have heen that the contract was made with a corporation, and not with the defendant’s testatrix. The undisputed evidence is to tlie effect that the defendant’s testatrix carried on her creamery at which the plaintiff delivered the milk under the name of the Orange and Sullivan County Milk Association; that there was or had been a corporation of that name of which her late husband was the president, and that upon his death she became the owner or proprietor of the creamery and business, and continued it under the same name; that under such *335ñame her agent made the contract in question with the plaintiff and the other patrons of the creamery. As the plaintiff was in nowise misled by the name in which defendant’s testatrix contracted with him, he cannot repudiate his contract with her after he has performed it bn his part. (Goodsell v. Western Union Telegraph Co., 130 N. Y. 430). To hold that the plaintiff can make the defendant pay for the milk at the plaintiff’s price, instead of that expressed in the contract, simply because the defendant’s testatrix used a corporate instead of her individual name in binding herself, when both parties understood that.she intended thereby to bind herself, would be unjust. Instead of giving effect to the intention of the parties, it would violate it. The defendant does not seek to escape the obligation of the contract. The plaintiff testifies that he signed the •contract at the office of the creamery, Mr. Stiles, the agent of the defendant’s testatrix in running the creamery, presenting it for his signature, the plaintiff at the time supposing him to be such agent, and that after signing it, he delivered the milk.

For the error in striking out the contract, the judgment must be reversed, a new trial granted, costs to abide the event.

All concurred, except Putnam, J., not sitting.

Judgment reversed, and a new trial granted, costs to abide the event.

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