his own name, under his own seal, and this was afterwards ratified by the principal by parol. A statute of 3 & 4 Wm. IV. required the transfer to be by instrument in writing, and the instrument in this case was of such a kind as would have been sufficient if it had not been under seal; and the Court of Exchequer held that it was sufficient to pass the interest. "It is the deed of the autioneer," said Park, B., in delivering the judgment of the court, "but it also may operate, by the consent of the principal, as a written transfer from him, as it certainly would have done if there had been no seal to it; and in order to prevent the instru ment from failing in its effect, and ut res magis valeat quam pereat, we do not feel ourselves precluded from holding that it operates to transfer an interest. If the authority had been by deed to convey by deed, the instrument would have been clearly inoperative for that purpose; but the authority is by parol; and must be assumed to have been to convey in the form in which it was conveyed; and this we think may be supported." [To like effect, speaks Paige, Judge, in giving the opinion of the Court of Appeals of New York, in Worrall v. Munn, 1 Selden, 239, "It is," says he, "a maxim of the common law that an authority *to execute a deed or instrument under seal must be conferred *612] by an instrument of equal dignity and solemnity; that is, by one under seal. A disposition has been manifested by most of the American courts to relax its strictness, especially in its application to partnership and commercial transactions. I think the doctrine as it now prevails, may be stated as follows, viz.: if a conveyance or any act is required to be by deed, the authority of the attorney or agent to execute it must be conferred by deed, but if the instrument or act would be effectual without a seal, the addition of a seal will not render an authority under seal necessary, and if executed under a parol authority or subsequently ratified or adopted by parol, the instrument or act will be valid and binding on the principal. It is said that the rule as thus relaxed is confined in its application to transactions between partners. But it seems to me that a distinction between partners and other persons in the application of the rule as relaxed and qualified by recent decisions, stands upon no solid foundation of reason or principle."]

II. As to instruments not under seal.

The case of New England Marine Ins. Co. v. De Wolf, illustrates the distinction between sealed and unsealed instruments, and shows that the rule requiring the instrument to be executed, or signed, in the name of the principal, does not apply to instruments not under seal: and the same distinction is expressly stated in Andrews v. Estes et als., 2 Fairfield, 267. The cases in all the States, in regard to instruments not under seal, agree, that if the name of the principal appear in the instru ment, and the intention, on the whole, be apparently to bind him, he will be the party bound, if the agent had authority, although the instrument

be signed in the agent's name only.(1) "In an agreement not under seal," said the chancellor, in the late case of Townsend v. Hubbard, 4 Hill's N. Y. 351, 357 (and see Townsend v. Corning, 23 Wendell, 436, 440), "executed by an agent or attorney on behalf of his principal, and where the agent or attorney is duly authorized to make the agreement, it is sufficient, as a general rule, if it appears in any part of the instrument, that the understanding of the parties was that the principal, and not the agent or attorney, was the person to be bound for the fulfilment of the contract."(2) In South Carolina, in some earlier cases,(3) this was not admitted, and it had been decided, that a note in the form, "I promise," &c., signed "J. L. R. for I. I." bound the agent personally, and did not bind the principal; but all these are overruled in Robertson v. Pope, 1 Richardson, 501, and the distinction recognized between deeds and parol contracts, that in the former the sealing and delivery must be in the name of the principal, but in the latter it is enough if it appear, that the contract was intended to be made for the principal. In Kentucky, also, in the earlier cases, it had been decided,(4) that notes beginning, "I promise to pay," &c., and signed, "For A. B., C. D.," or "C. D. for A. B.," or "C. *D., agent for A.," bind the [*613 agent and not the principal; but these cases have been qualified to the extent of allowing parol evidence to show that the agent intended not to bind himself personally, but to execute the instrument or contract as the act of the principal.(5)

[However, the question is one of intention as evidenced by legal expression, and where all through the instrument, a lease the contract was in the name of the agent "for or on behalf of" the principal-and rent was reserved to the agent "for the use of" the principal: and certain acts were not to be done except by consent in writing of the agent 66 on the part of" the principal; and other acts were to be done when the lessee should be called on by the agent "on the part of " the principal, and the contract was signed by the agent alone, it was held, properly, that the agent was liable.(5)

It will be seen, therefore, from the foregoing note, and from the one that follows, that a distinction exists in the forms of valid contracts, by (1) Lewis v. Nicholson, 18 Q. B. 503; see Farmers' and Mechanics' Bank v. Troy City Bank, 1 Douglass, 458, 467.

(2) See also Evans v. Wells, 22 Wendell, 325, 335, 340; and Pinckney v. Hagadorn, 1 Duer, 96.

(3) Fash v. Ross, 2 Hill's So. Car. 294; Taylor v. McLean, 1 McMullan, 352; Moore . Cooper, 1 Spears, 87.

(4) MacBean v. Morrison, 1 Marshall, 545; Patterson, &c., v. Henry, 4 J. J. Marshall, 126; Parks v. S. and L. Turnpike Company, Id. 456.

(5) Owings v. Grubb's Administrator, 6 J. J. Marshall, 31; Webb v. Burke, 5 B. Monroe, 51; and are now perhaps to be regarded as quite overruled by Hunter's Adm'rs v. Miller's Ex'rs, 6 Id. 612, 625 ; and Wright, &c., v. Roberts, cited Id. 625.

(6) Tanner v. Christian, 4 Ellis & Blackburne, 82 E. C. L. 592.

an agent for a principal, when under seal, when in writing not under seal, and when verbal. A contract under seal, by an agent for a principal, is not binding on the principal, unless it profess to bind him, and be executed in his name, and as his deed: a written contract not under seal is binding on the principal, in whatever form made or executed, if the principal's name appear in it, and the intention to bind him be apparent, but not unless his name appear in it: a verbal contract is binding on the principal, if his name is disclosed, and the person making it contract as his agent, and on his behalf.

*614]

*OF THE LIABILITIES AND RIGHTS OF ACTION, UPON PAROL CONTRACTS MADE BY AN AGENT FOR A PRINCIPAL.

S. & J. RATHBON v. BUDLONG.

In the Supreme Court of New York.

JANUARY TERM, 1818.

[REPORTED FROM 15 JOHNSON, 1-3.]

An agent who makes a contract on behalf of his principal, whose name he discloses at the time, to the person with whom he contracts, is not personally liable.

There is no difference, in this respect, between an agent for government and for an individual.

THIS was an act of assumpsit on a promissory note, in the following words:

"Ninety days after date, I promise to pay S. & J. L. Rathbon, or order, $302, value received, for the Susquehanna Cotton and Woollen Manufacturing Company.

Albany, June 24, 1815.

SAMUEL BUDLONG,

Agent."

The defendant gave in evidence a bill of parcels, headed as follows:

"The Susquehanna Cotton and Woollen Manufacturing Company, bought of S. & J. L. Rathbon," &c., at the bottom of which was the following receipt. "Albany, June 24th, 1815. Received payment, by a note payable in ninety days, which, when paid, will be in full of the above." The purchase of the goods and giving the note, were

simultaneous acts. The defendant also gave in evidence a power of attorney from the company above named, under their corporate seal, authorizing him to purchase and sell goods, &c., and make bargains, &c., draw bills and promissory notes, for them and in their names, and generally to manage the business of the company, as the defendant should think fit, &c., subject to the control and direction of the trustees of the company, &c.

A verdict was found for the plaintiffs, subject to the opinion of the court, on the case above stated.

*Foot, for the plaintiffs, contended, that the defendant [*615 had made the contract personally and not in the name of his principals. The note was, "I promise to pay," &c. An agent or attorney cannot draw or sign bills or notes in the name of another, without a special authority for that purpose. Here the defendant had a special power, but he did not sign the names of his principals.(1) There is no distinction, in this respect, between contracts under seal, and contracts not under seal.

Henry, contra, was stopped by the court; whose opinion was thus delivered.

SPENCER, J. It is perfectly manifest that the note, on which the suit is brought, was given by the defendant, as agent for the Susquehanna Cotton and Woollen Manufacturing Company, and that the goods for which the note was given were sold on the credit of that company. To charge the defendant with the payment of the note, would violate every principle of justice and equity; nor is the law so unjust. The general principle is, that an agent is not liable to be sued upon contracts made by him on behalf of his principal, if the name of his principal is disclosed and made known to the person contracted with, at the time of entering into the contract. This doctrine is fully supported by the case of Owen v. Gooch. (2) In fact, there is no difference between the agent of an individual and of the government, as to their liabilities. The question, in all cases, is, to whom was the credit given?

There are cases of covenants where persons have made themselves personally liable, because they have covenanted and bound

(1) Combe's Case, 9 Coke, 76; Frontin v. Small, 2 Strange, 705; S. C., 2 Lord Raymond, 1418; White v. Cuyler, 6 Term, 176; Wilks v. Back, 2 East, 142; Appleton v. Binks, 5 East, 148; Buffum v. Chadwick, 8 Massachusetts, 103.

(2) 2 Espinasse, 567.

themselves under seal, in which cases the principals were either not disclosed, or were not bound, or the agent meant to bind himself personally. In the present case, the credit was not only given to the company, but they were bound by the note of their agent; and there is not the least pretence to hold the agent responsible. Judgment for the defendant.

*616]

*PENTZ v. STANTON.

In the Supreme Court of New York.

MAY, 1833.

[REPORTED, 10 WENDELL, 271–278.]

Where the agent of a manufacturing establishment bought a quantity of dye-stuffs for the use of the factory, without disclosing the name of his principal, and the bill of goods was made out, "Mr. A. B., Agent, bought of," &c., and he drew a bill of exchange on a third person, signing it A. B., Agent, and the bill was subsequently protested, and an action to recover the price of the goods was brought against the principal; it was held, that the principal could not be charged as drawer of the bill by his agent, the name of the principal not appearing on it, but that the plaintiff was entitled to recover under a count for goods sold, the jury being warranted under the facts of the case in saying that the goods were not sold on the exclusive credit of the agent.

Whether in such case the goods are sold on the credit of the agent, or on the responsibility of the principal, whoever he may be, is a question for the jury; but where that question was not submitted, and a verdict was found for the plaintiff, and the court were satisfied of the ultimate liability of the principal to the agent, they refused to set aside the verdict.

A person may draw, accept or endorse a bill by his agent, and it will be as obligatory upon him as though it was done by his own hand; but the agent in such case must either sign the name of the principal to the bill, or it must appear on the face of the bill itself, in some way or other, that it was in fact done for him, or the principal will not be bound; the particular form of the execution is not material, if it be substantially done in the name of the principal.