Victor Prosper Considerant v. Albert Brisbane.
1. A written instrument, whereby the defendant promised “to pay to V. 0., as executive agent of the company—Bureau, G., G. & Co.—the sum of $5000,” is legally payable to the company represented by V. C., and not to V. C., the agent.
2. Under the provisions of a statute, which requires that all actions shall be brought in the name of the real party in interest, V. C., the agent, cannot maintain an action in his own name, upon such an instrument, to recover the sum agreed to be paid.
3. The proviso in such statute, which authorizes the trustee of an express trust to sue in his own name, and defines such trustee as one “ with whom, or in whose name a contract is made for the benefit of another,” does not enable V. C. to sue in his own name upon such an instrument. The contract, in such case, is not, in a legal sense, made in the name of Y. C., nor with him.
4. The consideration of such promise, being stated in the instrument in these words: “ for which I am to receive stock of the said company, to the amount of $5000,” indicates that the company is the real party to the contract, entitled to receive the money, and by whom the stock is to be delivered.
5. If, upon the face of the note, it were deemed doubtful whether the contract was with Y. 0. personally, and the words describing him'as executive agent, were not conclusive to the contrary; averments in the complaint that the company—Bureau, G., G. & Co.—is a corporation; that Y. C. was, in making the contract, acting as the agent, and as such was authorized to receive subscriptions to the stock of the corporation; and that the defendant authorized him to sub-, scribe the name of the defendant in the company’s books, as an original subscriber ; and that the defendant executed the instrument for the payment of the sum named for the shares so taken by the defendant in said company; show, conclusively, that the contract was made, by the defendant, with the company, and that the defendant’s promise to pay is, legally, a promise to the company, which alone is interested therein. For this reason, therefore, also the agent Y. C. cannot maintain the action.
6. In judgment of law, the acts of a mere agent, (not shown to have any interest in the subject,) done avowedly for the principal, and on his behalf, and by his authority, are the acts of the principal only; and contracts made with the agent, in such representative capacity, are contracts with the principal, and not with the agent.
7. In such case, the agent is not personally liable upon the contracts, and he cannot maintain an action thereon in his own name.
(Before Duer, Ch J., and Bosworth, Hoffman, Slosson and Woodruff, J. J.)
Heard, Dec. 19th, 1857;
decided, Feb. 6th, 1858.
This action came before the Court, upon an appeal, by the defendant, from an order made at Special Term, before Mr.- Justice *472Slosson, overruling a demurrer to the plaintiff’s amended complaint. The complaint was in the following words:—
“ The plaintiff, for an amended complaint in the above entitled action, by Francis H. Dykers, his attorney, complains of the defendant, and avers—
“ First.—That the said defendant, on or about the 1st day of March, 1855, at the City of New York, applied to the said plaintiff, acting as the executive agent, and as such agent, authorized to receive subscriptions to the stock of the European and American Colonization Society, in Texas, a corporation duly created by, and existing under the laws of Belgium, in Europe, and of which said corporation, the business name is Bureau, Guillon, Godin & Co., and authorized said plaintiff to subscribe the name of the said defendant in the books of the said company as an original subscriber for the stock of said company, known as premium stock, to the amount of $10,000, which said plaintiff then and there undertook, and faithfully promised to do.
, “ Second.—That the said defendant then and there made and executed, in writing, two subscription notes or contracts, for the payment, in the aggregate, of the sum of $10,000, for the shares so taken by said defendant, in said company, which said notes were in the words and figures following, to wit:—
“ (1) New York, March 1st, 1855.
“$5000.
“ On the first day of July, 1856, I promise to pay to Y. Considerant, as executive agent of the company—Bureau,. Guillon, Godin & Co.—the sum of five thousand dollars, for which I am to receive stock of said company, known as premium stock {actions aprimé), to the amount of five thousand dollars, value received.
“A. Brisbane.
“ (2) New York, March 1st, 1855.
“$5000.
“ On the 1st day of September, 1856,1 promise to pay to Y. Considerant, as executive agent of the company—Bureau, Guillon, Godin & Co.—the sum of five thousand dollars, for which I am to receive stock of said company, known and designated as premium stock {actions aprimé), to the amount of five thousand dollars.
- “A. Brisbane.
*473“ Third.—That said defendant thereupon delivered both of said notes to this plaintiff.
“ Fourth.—That said plaintiff, acting as such executive agent, and under, and by virtue of the authority vested in him by said defendant, duly caused the name of said defendant to be entered in the books of the said company, at Brussels, in Belgium, for the amount of stock so subscribed for by him, and caused certificates, in the usual form issued by said company, to be issued in the name of said defendant.
“ Fifth.—That this plaintiff has always been ready and willing to deliver, to said defendant, the certificates of said company of the share or interest so subscribed for, by said defendant as aforesaid, or intended so to be, (and, on the maturity of each of said notes, caused the "same to be tendered to the said defendant,) on the payment by said defendant of the sum agreed to be paid by him for the same, and said plaintiff is still ready and willing so to do, but said defendant has hitherto wholly neglected and refused to pay the same, so agreed to be paid by him as aforesaid, and still wholly neglects and refuses so to do; to the damage of this plaintiff of $10,000 and upwards.
“ Wherefore said plaintiff demands judgment against said defendant, for the sum of $10,000, with interest on $5000 from the 3d day of July, 1856, and interest on $5000 from the 4th day of September, 1856, besides the costs of this action.”
To this complaint, the defendant demurred, and the demurrer being overruled, and the complaint held sufficient at Special Term, he appealed to the General Term.
William, B. Leeds, for the defendant (appellant).
The action (if any is maintainable) should have been brought by, and in the name of the corporation—Bureau, Guillon, Godin & Co.
The contract, as set forth in the complaint, was made between the company and the defendant. The words, “as executive agent,” or words of official, and not of personal description. A promise to pay V. C., executive agent, etc., may mean no more than V. C., merchant or mechanic. But a promise to pay V. C., as executive agent, etc., is a promise to him in his official or rep*474resentative capacity, and enures to the corporation, whose officer or agent he is, and leaves no right of action for the breach thereof, in the plaintiff. (Bayley v. The Onondaga County Mutual Ins. Co., 6 Hill, 476; Taintor v. Prendergast, 3 Hill, 72; Buckbee v. Brown, 21 Wend. R. 110; Brockway v. Allen, 17 Wend. R. 40; Safford v. Stevens, 2 Wend. 158; Gilmore v. Pope, 5 Mass. R. 491; Bowen v. Morris, 2 Taunton R. 374; Piggott v. Thompson, 3 Bos. & Pull. 147, 150; Sargent v. Morris, 3 Barn. & Ald. 277 ; The Inhabitants of Garland v. Reynolds, 2 App. 45 ; Irish v. Webster, 5 Greenleaf R. 171; Commercial Bank v. French, 21 Pick. R. 486; Taunton and South Boston Turnpike v. Whitney, 10 Mass. R. 327; Arlington v. Hinds, D. Chipman R. 431; Middlebury v. Case, 6 Vermont R. 165.)
The plaintiff was' not personally bound by the'contract set forth in the complaint. (Bank of Genesee v. Patchin Bank, 3 Kernan, 318; Babcock v. Beman, 1 Kernan, 200; Watervleit Bank v. White, 1 Denio, 608; Brockway v. Allen, 17 Wend. 40; Randall v. Van Vechten, 19 John. R. 60; Hall v. Huntoon, 17 Vermont R. 244; Many v. Beekman Iron Co., 9 Paige, 188; Evans v. Wells, 22 Wend. R. 325; Kirkpatrick v. Stainer, 22 Wend. 244.)
If the words, “as executive agent,” etc., in the contract, set forth in the plaintiff’s complaint, show that it was the intention to bind the corporation for the performance of the contract, and not the executive agent as an individual; why do not the same words show that it was also the intention that the obligations of the defendant should enure to the corporation, and not to the executive agent, as an individual?
But even if the words, “ as executive agent,” etc., in the promises of the defendant, are construed to be words of mere description, and not of substance, yet the plaintiff cannot maintain this action, because it appears, upon the face of the complaint, that the consideration of the contract proceeds from the company—Bureau, Guillon, Godin & Co.—a corporation, and the plaintiff is a mere naked agent or officer of the corporation, not bound by the contract, and with no beneficial interest in it. (Sailly v. Cleveland, 10 Wend. 156; Safford v. Stevens, 2 Wend. 158; Taintor v. Prendergast, 3 Hill, 72 ; Hall v. Huntoon, 17 Vermont R. 244.)
This action must be governed by section 111 of the Code, unless the exceptions enumerated in section 113 apply. A trustee *475of an express trust, as defined in section 113 óf the Code, is construed to mean “ a person with whom, or in whose name a contract is made for the benefit of another.” This means a person who contracts as principal, or in whose name a contract is made as principal, (the other party to the contract accepting an obligation from him, and contracting an obligation to him,) for the benefit of another. . It cannot mean a mere naked agent or officer, who is not bound by the contract, is not beneficially interested in it, and furnishes no part of the consideration for it. (2 Sand. 706.)
To entitle the plaintiff to recover, the contract must have been . made by him or in his name.
If it was made by him, or in his name, he is a party to the con-contract.
And if a party to the contract, he is bound by the contract.
But the plaintiff is not bound by the contract, (see cases above cited.)
The company—Bureau, Guillon, Godin & Co.—by their executive agent, engage to make the defendant an original subscriber to their stock to the amount of $10,000; this makes them the party of the first part. The defendant agrees to pay therefor the sum of $10,000; this makes him the party of the second part. But the defendant agrees to pay this $10,000 to the plaintiff as executive agent of the company. Does this engagement make him a party to the contract, within the meaning of section 113 of the Code? If the contract is made by him, what does he agree to do? or what is agreed to be done in his name? The agreement of the defendant to pay to the plaintiff, as the executive agent of the company, $10,000, is an agreement to pay the company $10,000 (see the authorities cited above).
Francis H. Dykers, for the plaintiff, (respondent).
The only question is, whether the action is properly brought in. the name of Considerant, the plaintiff.
I. The objection being that the contract, which is the basis of this action, was virtually made with the company, and not with the plaintiff, the demurrer should have been “for want of legal capacity in the plaintiff to sue,” and not for insufficiency of facts to constitute a cause of action.
*476II. But, in any view of the case, the objection is not well founded. Section 113 of the Code says “ a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. Plaintiff has executed his part of the contract and has tendered the stock.
III. The language of the contract here is, “ I promise to pay V. Considerant as executive agent of,” etc.
If the language “ as executive agent," is not a personal description, it is, at best, the description of the capacity in which he acts.
It is, therefore, a contract with the plaintiff and in his name, but in a particular capacity, which capacity shows that the contract is for the benefit of another.
IY. If the case is clearly within the statute, the Court will not ask for any other reason why the statute should apply.
Although the action might have been brought in the name of the company, under section 111 of the Code, yet it is properly brought here in the name of the plaintiff.
The order at Special Term should be affirmed with costs. (See Erickson v. Compton, 6 How. Pr. R. 471; People v. Norton, Court of Appeals, but not reported—referred to in note “ A,” sec. 113 of 5th ed. of Code; Burbank v. Beach, 15th Barb. 326; Moss v. Livingston, 4 Coms. 208; Davis v. Garr, 2 Seld. 124, 133.)
By the Court. Woodruff, J.
Our statute now provides that every action must be prosecuted in the name of the real party in interest, (Code, § 111,) except as provided in section 113, which declares that an executor or administrator, or a trustee of an express trust, or a person expressly authorized by statute may sue, without joining with him the person for whose benefit the action is prosecuted; and, byway of definition, it is added, that “ a trustee of an express trust shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.”
The question before us, and, as we think, the only question, is whether, upon the facts stated in the complaint, the plaintiff is a trustee of an express trust, or, in the words above cited, whether, upon the complaint, the plaintiff appears to be a person with whom, or in whose name, the contract set forth was made.
*477He is named in the contract; but is the contract, in a just legal sense, made in his name ?
And is the contract made with him, or in legal effect, with the corporation for which he was the agent ?
In judgment of law, the acts of a mere agent done openly and avowedly for his principal, and on his behalf and by his authority, are the acts of the principal only, and the contracts so made are the contracts of the principal. No liability is thereby incurred by the agent, and no rights are acquired by him.
And hence the general doctrine,, that a merely naked agent cannot sue in his own name upon the contracts which he makes for his principal, or which are made through his agency.
But he may contract in such wise as to bind himself personally, and acquire the correlative right to enforce the contract; in which case, although he have no interest whatever in the subject, except what arises out of the contract itself, he may maintain an action thereon. By entering into the personal obligation, he acquires an interest in the contract, and ceases to be the mere agent of his principal.
So in numerous cases, usually spoken of as exceptions to the general rule; as where the principal is not disclosed, in which case the agent does, in fact, bind himself, and so becomes interested in the contract, and acquires the right to enforce it.
So as to an auctioneer, an insurance agent effecting an insurance in his own name for the benefit of another, and a commission merchant, or factor, or a person having a lien upon, or special property in, the subject of the contract. They have long been held entitled to sue upon contracts made by themselves for their principals. By the usages of trade, and in general, because they have an actual interest in the contract itself, or are themselves bound for its performance, they are permitted to sue in their own name for its enforcement.
But clerks, servants and agents generally, selling goods or property for their known principals, and not undertaking themselves for the performance of the contract, have no interest therein, and cannot sue thereon. And yet it is obvious that, if the mere form of words spoken be attended to, millions of property are verbally sold by merchants’ clerks, acting in the known exercise of their authority as clerks, in which the name of the principal is not, in *478terms, mentioned, and. in which the whole form of negotiation and promise is in the first and second person.
, ' In regard to verbal contracts, we apprehend that no great doubt or embarrassment can arise. When the agent acts purely and professedly as the mere agent of another, words of promise or undertaking, by or to the agent, will be taken as by or to the principal, whether his name be used or not; the agent will be taken to act in a representative character, and so the words employed will be construed as, in legal effect, used by or to the principal in his proper person.
And this will be the sole effect and operation of such a contract, " unless the agent has an interest in the subject of the contract, or by express terms undertakes to bind himself in his individual or personal capacity, and so acquires an interest in the contract itself.
And when the contract -is in writing, if it appear on the face of the contract, that, although named therein, he is mentioned' only in respect of his official or representative character, and not as promisee individually, the promise will not be deemed made to him. When the promise is made to him by his name, without further designation or qualification, purporting to be a contract with him personally, he may sue thereon: the contract is, in every just sense, made with him. When he is designated by name, with the addition of terms of office, or agency, which are merely descriptive of the person, the contract may still be taken to be with him.
But when the terms are such, as clearly import that the party represented is the intended recipient of the subject of the promise, and the designation of the name of the agent is qualified by terms expressive of the capacity or relation which he bears to. such re- • cipient, then the contract is not, in a legal sense, with, nor in the name of the agent.
In short, where the agreement is in writing, it must appear that the agent is himself a party to the contract.
We need hardly specify examples of promissory notes given to agents, by name, without other terms of description; or promissory' notes given to one who, though named, has the word cashier, or trustee, or treasurer, added to his name. ¡Numerous similar examples are to be found in the books; and although there is not entire harmony of decision, it may, we think, be taken as set-*479tied, that where the promise is in the form of a promissory note, if it be drawn in terms to the agent byname only, or if the designation annexed be words of description only, it may be treated as made with him and in his name, and he may sue thereon.
But where, on the face of the note, it is his official character which was alone in. the mind of the promisor, and contemplated in the promise, the effect is otherwise; as, when the promise was to pay “to the treasurer,” etc., the plaintiff, though in fact treasurer, could not sue, or where the promise was to pay to the cashier of a designated bank, and so of similar cases collected in Paley on Agency, (part 4, chap. 5, and notes to Dunlap’s ed. 1847,) and Story on Agency, (§ 160, § 160a, §§ 401, 418-429,) in treating of this subject.
And the cases most strikingly like the present are in the precise class last defined, in which the promise shows, on its face, that the agent, though named, is named in a capacity or relation that excludes the idea that the promise is made to him personally.
They are a note given to one as “ town treasurer,” or to a “ town treasurer and his successors in office.”
With these general observations, upon the right of an agent to sue, upon principles recognized before the Code, we observe, further, that where a contract was, in legal effect, made with the principal, in such sense, that the agent could not sue thereon, the contract could not be said to be made with the agent.
And where, though his name was contained in the contract, it was accompanied by such a designation of the official dr representative character in which he was named, as promisee, that the promise was, in judgment of law, taken to the principal, and not to himself, then, and in such cases, the contract could not be said to be made in his name.
These views, we think, are sustained and established by numerous cases, and among them, from our own State, see Harp. v. Osgood, (2 Hill, 219,) Taintor v. Prendergast, (3 Hill, 72,) Bayley v. The Onondaga Co. Mat. Ins. Co., (6 Hill, 476,) Grinnell v. Schmidt, (2 Sand. S. C. R. 706,) Union Ind. R. Co., v. Tomlinson, (1 E. D. Smith, R. 364,) and cases cited, among which, bearing most directly upon the' point now under consideration, are Piggott v. Thompson, (3 Bos. & Puller, 147,) and Bowen v. Morris, (2 Taunt. 374;) and see, also, Sargent v. Morris, (3 Barn. & Aid. 277,) Gilmore *480v. Pope, (5 Mass. 491,) reaffirmed in Taunt, and So. Boston Turnpike Co. v. Whiting, (10 Mass. 336.)
We must assume, that the Legislature, in declaring what the terms “trustee of an express trust” should include, made use of language with a view to its known legal signification.
That they intended, that when the question arose—with whom is the contract in question made? we should answer it in the light of past adjudication, and if the answer in this particular case, is, with the principal, and not with the agent; then, the agent is not a trustee of an express trust, within the definition. And so, if the contract only refers to the agent for the purpose of defining the capacity in which he acts, and not for describing his person, as in the cases above suggested, in which the promise is taken, to the principal directly; then the contract is not, in a legal sense, made in his name, and again, he is not a trustee of an express trust, within the definition.
If these views are correct, the demurrer, in the present case, is well taken. . The contract, declared on, does not import, that the plaintiff has any interest in the subject matter of the contract— nor in the contract itself—nor that he is in anywise bound for, or will be benefited by its performance; it imposes upon him no duty; the promise contained in it does not purport to be made to him personally—it is precisely like a promise to one, “ as town treasurer,” already referred to—it is, therefore, a contract, not with him, but with his principal, and for the reasons already mentioned, it is not, in a legal sense, in his name—it is only in his character as agent, and not in his name as a person, that the contract is madg.
If there was any thing to be performed to the defendant, it was not by the agent. This is, we think, quite apparent. Had the contract been subscribed by the plaintiff, in terms, “as such executive agent, etc.," it would have been no more, and, we think, no less obvious, that the stock which the defendant was to receive, was to be issued to him by the corporation represented, for the purposes of the contract, by the plaintiff.
In this aspect of the case, the contract was between the defendant and the corporation: the defendant was to pay his subscription notes, and the corporation were to issue to him stock for the amount thereof.
*481And we feel no hesitation in saying, that, upon issuing and tendering to him the stock, the corporation could maintain the action on his promise; and, we .think, that upon the principles above suggested, the plaintiff, the merely naked agent of the corporation, cannot
If there was any room for doubt upon the question, whether, upon the face of the notes sued upon, any implied obligation could arise, if unexplained, binding the plaintiff to deliver the stock, and so giving to him such an interest in the contract as might enable us to treat it as made with him, the pleader seems to us to have carefully excluded any such possible implication, or any construction other than that the plaintiff is the naked agent of the corporation, by the other averments of his complaint.
He avers, that the defendant applied to the plaintiff, acting as agent, and, as such, authorized to receive subscriptions, and authorized to subscribe the defendant’s name in the books of the company, as a subscriber for the stock; that the notes were subscription-notes, made and given for the shares taken by the defendant in the company; that the plaintiff, as such agent, caused the defendant’s name to be entered in the books of the company, as a subscriber, for the amount designated, and caused certificates, in the usual form, to be issued by the company to him. The promise of the defendant being, to pay to the plaintiff, as such agent, completes a transaction in which, as it seems to us, the whole consideration, and the whole obligation and duty, are, as matter of law, between the defendant and the corporation, respectively and reciprocally; that the plaintiff is in no sense a trustee, or any thing but the mere instrument through whom an immediate and direct legal title passed to the corporation, which he represented as their naked agent, not acting or professing to act in his own name.
The order appealed from must be reversed, and judgment or-
dered for the defendant, on the demurrer; but with leave to the plaintiff to amend, within twenty days, on payment of costs. Costs of the appeal may abide the event of the suit.
Ordered accordingly.