Brown agt. Cherry.

action upon the contract in his name without joining his principal, and it is also held that in such case, the principal also, has the right to sue without joining the agent with him. (Morgan agt. Reid, 7 Abb., 215; The Union India Rubber Company agt. Tomlinson, 1 E. D. Smith, 380, and Van Lien agt. Byrnes, 1 Hilt., 133).

An auctioneer who sells goods in his own name, to a third person, is the trustee of an express trust within the meaning of the section in question, and may sue upon the contract, without an assignment of the cause of action. And he is not bound to show that he was a licensed auctioneer. He sues under the statute as a "trustee of an express trust," having made a sale of goods for the benefit of another. (Bogart agt. O'Regan, 1 E. D., Smith, 591).

In Minturn agt. Main, (3 Selden, 220). It was decided that a public auctioneer who sells goods for another, may maintain an action for the price, although he has received his advances and commissions deed, and has no interest in the property or its proceeds. And the court in its opinion at page 224, says: There are two considerations which are conclusive against the defendant, one is that an auctioneer has such a special property or interest in the subject matter of the sale that he may sue in his own name, unless the principal or real owner elect to bring the action in his own name. (Chitty on Contracts, 185). And it is unnecessary to prove that he has a special property or interest, for that flows as a matter of course, from his position as an auctioneer; and it is only where a party acts as a mere agent or servant that a special beneficial interest, must be proved to maintain an action or may be disproved to defeat it.

The other is that the defendant is estopped from denying that he contracted directly with the plaintiffs, by receiving the goods from them, giving his receipts to them, as if on a purchase made by him of them, and by his subsequent recognition of the whole transaction, as a sale directly He treated the transaction throughout

from them to him.

Brown agt. Cherry.

as a sale from them to him, until he obtained possession of the property, and appropriated it to his own use, and it no longer lies in his mouth to refuse that character to it." These remarks are all applicable to this case. In that case the auctioneers had no possible interest in the proceeds of the sale, except it be that they were answerable over to their principal therefor. They had received their charges and commissions, and yet they were held to be entitled to sue, because they had an interest in the subject matter of the suit; certainly if I am right in supposing that the plaintiff in this case would be answerable over to Mrs. Stewart, if he had permitted the unauthorized mortgage to be foreclosed, he has as much interest in this action as the auctioneers had in that; and the estoppel upon the defendant here is quite as strong; for the defendant or the mortgagee, under whom she claims the mortgage, contracted with the plaintiff as the party in interest, took the mortgage from him in his own name, and afterwards instead of proceeding to foreclose it by action, he did so by advertisement, and treated the plaintiff as the only person who had any title to the premises. He is foreclosing against him as the party interested, and he should not be allowed when it turns out on the trial of the action, which was commenced by the plaintiff to stop his proceeding, to turn round and insist that his mortgagor has no interest in the question, whether he be a trustee of an express trust or not.

But I think, upon the authority of the case of Considerant agt. Birsbane (22 N. Y. Rep., 389,) there can be no question that the plaintiff was a trustee of an express trust within the meaning of section 113 as it now stands. In that case, the plaintiff was the executive agent of a foreign corporation and authorized to receive subscriptions to its capital stock; the defendant subcribed for and received stock of the company from the plaintiff to the amount of $10,000, and he executed two promissory notes and delivered them to the plaintiff, by each of which he promised to

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pay to him, "as executive agent of the company," the sum of $5,000. The plaintiff sued upon the notes in the superior court of New York, and in his complaint the notes were set forth at length. The defendant demurred to the complaint, assigning as the ground that it did not state facts sufficient to constitute a cause of action. The superior court, at general term, sustained the demurrer on the ground that the action could not be maintained by the plaintiff. The plaintiff appealed, and the court of appeals reversed the judgment.

In declaring the prevailing opinion, (at p. 394, &c.,) WRIGHT, J., says: "Prior to the Code, therefore, I am of the opinion that the plaintiff might have maintained an action on the express contracts set out in the complaint for the benefit of his principals, having a legal interest in them by way of trust. The promise being to him in writing, for the benefit of another, he would have been deemed the party with whom, or in whose name, the contracts were made, and in whose name alone the promise could be enforced in a court of law. The Code, however, abrogated the common law rule that the right of action followed the legal title, and made the beneficial interest the sole test of the right. In adopting the latter rule, it was easily to be seen that there was a class of cases in which it would be extremely prejudicial to the remedy, as well as difficult of application, viz.: the case of executors, persons authorized by statute to sue, and trustees of an express trust. To obviate this, it was specially provided that in these cases the executory, or statutory party, or trustee of an express trust, might sue without joining with him the person for whose benefit the action was prosecuted (Code, § 113). The term 'trustee of an express trust,' had, however, acquired a technical and statutory meaning. Express trusts, at least up to the adoption of the Revised Statutes, were defined to be trusts created by the direct and positive acts of the parties by some writing, or deed, or will; and the Revised

Brown agt, Cherry.

Statutes had abolished all express trusts, except as therein enumerated, which related to land. If the 113th section of the Code was to be confined and limited to those enumerated as express trusts, the practical inconvenience arising from making the beneficial interest the sole test of the right to sue, and which that section was intended to obviate, would continue to exist in a large class of formal and informal trusts. Accordingly, in 1851, the section was amended by adding the provision that 'a trustee of an express trust, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another:' It is to be observed that there is no attempt to define the meaning of the term 'trustee of an express trust' in its general sense; but the statutory declaration is, that these words shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' The counsel for the respondent insists that the sole intention of the legislature in amending the section, was to remove a doubt that has been expressed, whether a factor or other agent, who had at common law a right of action on a contract made for the benefit of his principal, (by reason of his legal interest in the contract) was by the Code deprived of that right. But no such limited intention can be inferred from the words of the statute. Indeed, it is only by a liberal construction of the section that the case of a contract by a factor (an individual contract) can be brought within it at all. It is intended, manifestly, to embrace not only formal trusts, declared by deed inter partes, but all cases in which a person acting in behalf of a third party, enters into a written express contract with another, either in his individual name, without description, or in his own name, expressly in trust for, or on behalf of another, by whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name, a contract is made for the benefit of another." These prin

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ciples were not controverted in the dissenting opinion in the case, but it is contended that the phraseology of the notes was such that in reality it was a promise to pay to the principal, and did not import on its face a contract to pay it to the plaintiff, either absolutely or as a trustee.

That Mrs. Stewart was not made a party, furnished no good reason for the dismissal of the complaint. It is enough for the purposes of the plaintiff on this appeal, if it appears that he was entitled to commence the action alone, or in conjunction with Mrs. Stewart. If he had a standing in court in either way, upon the pleadings in this case, the complaint could not be dismissed. For if Mrs. Stewart should have been a party plaintiff with him, the defendant if she would raise the question, should have claimed it in her answer, and could not ask a dismissal for that reason on the trial. She could not demur to the complaint, for that contained a good cause of action, and there was no statement in it to show that any one besides the plaintiff had any interest in the controversy. She must, therefore, have claimed the non-joinder, by setting up the facts on which she relied for that purpose and making the claim in the answer, and by not doing so she waived it. (Code sec., 148; Merritt agt. Walsh, 32 N. Y. Rep., 685; Halsey agt. Black, 28 N. Y., 438).

I am clearly of the opinion that the plaintiff had the right to commence the action as he did, and that if the defendant would insist that Mrs. Stewart should have been a party, in order to a full and final disposition of the controversy, she should have taken the proper steps for that purpose; and if it appeared on the trial that a complete. determination of the controversy could not be had without the presence of Mrs. Stewart, the court should have caused her to be brought in, pursuant to section 122 of the Code. The judgment should be reversed, and a new trial granted, with costs to abide the event.