And the agent is always personally liable, if he has obtained the money wrongfully, fraudulently, or by compulsion. (1) With regard to the right to recover back money, wrongfully exacted by public agents, see the cases below. (2)

*II. With regard to the RIGHT OF ACTION on contracts made [*641 by an agent, the general rule of law prevails, that the person to sue is he who has the legal interest in the subject of the action.(3) And, in assumpsit, this gives rise to a distinction between (1) express and (2) implied promises, founded on the difference in the ground of the legal right of action. On express contracts, the suit should be brought in the name of the person who, upon the legal construction of the agreement, is the party principal in the contract; on implied promises, suit must be brought by the person interested in the consideration from which the promise is implied.

(1.) Of express contracts, the principal instances are written agreements; and of these, two cases may be noted.

(i.) Where the names of the principal and agent, both are disclosed in the agreement.

(ii.) Where only the agent's name appears.

(i.) If, upon the face of the agreement, the agent be the party with whom the contract is made, and the beneficial interest appear to be in the principal, that is, if there be an express engagement to or with the agent, and obviously for the benefit of the principal, either party may sue; the agent as having the legal interest, (4) and the principal as having the beneficial interest; but if the contract be clearly made with the principal alone, though through the agent, the principal alone is entitled to sue. e.(5) The cases most frequent in the books, are of corporations, and unincorporated associations; and they show a distinction of this kind. If a promissory note or written agreement be made to one by name, described as the treasurer, committee, cashier, or agent, of either a corporation or an unincorporated association, here the agent, being a party to the contract, may sue upon it in his own name, especially where he has some beneficial interest in the contract ;(6)

(1) Frye v. Lockwood, 4 Cowen, 454; Ripley v. Gelston, 9 Johnson, 201, 209; The Bank of the United States v. The Bank of Washington, 6 Peters, 8, 19; Seidel v. Peckworth and Wife, 10 Sergeant & Rawle, 442.

(2) Elliott v. Swartwout, 10 Peters, 138; Bend v. Hoyt, 13 Id. 263; Cary v. Curtis, 3 Howard's Supreme Court, 236.

(3) See Sailly v. Cleveland, 10 Wendell, 156, 159; Spencer v. Field, Id. 87, 91; Treat v. Stanton, 14 Connecticut, 446, 451; Manlove v. McHatton et al., 4 Scammon, 95; Fortune v. Brazier, 10 Alabama, 791.

(4) See Van Staphorst et al. v. Pearce, 4 Massachusetts, 258, 263; and Underhill et al. v. Gibson et al., 2 New Hampshire, 352, 357.

(5) See Tharp v. Farquar, 6 B. Monroe, 3, and other cases there cited, of sealed instru

ments.

(6) Clap v. Day, 2 Greenleaf, 305; Potter v. Yale College, 8 Connecticut, 52, 60; Fisher

and, in such a case, the corporation or association, where it is, upon the face of the instrument, obviously the party interested in the contract, and is in law capable of suing, may also sue in its or their own name;(1) but where the engagement is to the treasurer or cashier, &c., of such a corporation or unincorporated association as the official representative of it, and not to him by name, the principal alone can sue, and the agent cannot; for it is obvious that the engagement is made directly with the principal, and though it is made through the agent, he is not a party to the contract, and has no interest in it legal *642] or beneficial.(2) There are cases, also, in which, *though there be an express promise to the agent by name, he is yet not a party to the contract, the consideration and the liability being direct between the principal and the other party, and not through the intervention of the agent; as, where an express promise is made to the agent in consideration of a legal liability to the principal, or the promise is to the agent in a public capacity, as an officer of the state, the official character appearing on the face of the contract; here there is no consideration for the promise to the agent, and the principal, alone, must sue; Gilmore v. Pope, 5 Massachusetts, 491 (which went upon the ground that a liability directly to the corporation which they by statute were capable of enforcing, was created by the fact of subscription). (3)

(ii.) The other case is where the agent's name alone appears in the written agreement. In the case of a legal instrument which vests a right of action by delivery, and is declared on as a cause of action in itself, there seems to be no doubt, that the promisee alone can sue; and that the principal, claiming not as endorsee, but only as principal, cannot. Thus where a note was made payable to "S. J., Esq., Cashier, or order," it was held that the bank, of which he was cashier, and for which as principal the contract was made, could not sue upon the note, without his endorsement.(4) In the case of mere written agreements, the agent to whom the promise is made, may sue in his own name;(5) but as to the point, whether the principal may sue in his own name,

v. Ellis, 3 Pickering, 322; Fairfield v. Adams, 16 Id. 381; Porter v. Nekervis, 4 Randolph, 359; McHenry v. Ridgely, 2 Scammon, 309; McConnel v. Thomas, Id. 313; Binney et al. v. Plumley, 5 Vermont, 500; Buffum v. Chadwick, 8 Massachusetts, 103.

(1) Trustees, &c., v. Parks et al., 1 Fairfield, 441 ; Garland v. Reynolds, 20 Maine, 45. (2) Commercial Bank v. French, 21 Pickering, 486; Ewing v. Medlock, 5 Porter, 82; Alston v. Heartman, Treasurer, &c., 2 Alabama, 699; Harper v. Ragan, 2 Blackford, 39; Crawford v. Dean, 6 Id. 181; Vt. Central R. R. Co. v. Clayes, 21 Vermont, 31, 37; Pigott v. Thompson, 3 Bosanquet & Puller, 147; see Bayley v. The Onondaga County Mutual Insurance Company, 6 Hill, 476.

(3) Irish v. Webster et al., 5 Greenleaf, 171; Commonwealth v. Wood, 1 J. J. Marshall, 310, 313.

(4) Bank of U. S. v. Lyman et al., 20 Vermont, 668.

(5) Harp v. Osgood, 2 Hill's N. Y. 217.

upon such an agreement, by proving that the contract was made for his benefit by his agent, there may be some diversity of practice, but upon principle, it seems to be clear, that he cannot. The case of the United States v. Parmele, 1 Paine, 252, illustrates this in a very satisfactory manner. In Newcomb v. Clark, 1 Denio, 227, which was a suit by Clark against Newcomb, one H. Peters proved, that he was the agent of Clark for letting a house; that one Ward applied to him to rent it, but that the witness refused to let him have it, unless he procured security, whereupon he brought a letter signed by the defendant in these words: Mr. H. Peters, Dear sir, I hereby agree to pay you the rent of the part of the house hired of you by Mr. J. Ward," &c.: but the court were of opinion that the suit could not be maintained in the name of Clark, but must be brought by Peters: "The rule in regard to parties to actions," they said, "seems to be, that every action on an express contract must be brought in the name of the person to whom the engagement violated was originally made, unless it is transferable, as a negotiable note, &c. In the present case, the promise or agrecment is expressly made with Peters; Clark's name does not appear in the writing. It is not competent to contradict or amend the agreement by parol proof, by substituting Clark's name as the promisee in the place of Peters." In Humble v. Hunter, 12 Q. B. 310, the Court of Queen's Bench decided that a charter party made with one who on the instrument called himself "owner" could not be sued upon by the person who really was his principal. In Hubbert v. Borden, 6 Wharton, 79, 92, it appears to be laid down by the learned judge *who de[*643 livered the opinion of the court, that in suing on a written agreement made to the agent in his own name, parol evidence is admissible to prove, that the contract was made by the agent for the benefit of another as principal, so as to give a right of action to the latter in his own name. It is apprehended, however, that the views of the learned judge in that case are not sound, and are to a great extent extra-judicial, being not called for by the case before him, which was put on the proper ground by the judge below, pp. 88, 89, who showed that the action was not brought on the written agreement, but that there was evidence of a contract between the principal and the third party, made through the former's agent, and that the written paper was relied on only as a statement of the terms of the contract. The distinction is supposed to be this: if it be proved that the principal. was disclosed to the third party, and that there was an intention to contract with him, a written agreement in the names of the agent and third party may be given in evidence to show the terms of that contract. [It was a case in this respect like Huntingdon v. Knox, 7 Cushing, 371, where, at p. 375, the court, which, in the case of a written receipt, allowed evidence of an unknown principal to be given, say

expressly that this action is not brought on any written promise: the receipt is a written acknowledgment; and it expresses the terms upon which the sale had been made; the law raises the promise;"(1)] but where no other evidence of an agreement is offered but a contract in the name of the agent, and it does not appear, that the existence of a principal was known to the other party, it is not competent to the principal, merely by showing that an express contract in evidence, and proving that he was the principal of one of the parties, to recover in his own name. In truth, in such a case, the person interested is not the principal in the express contract which is relied on. And this is supposed to depend, not on the rule which forbids parol evidence to be used in contradiction of a written agreement, but upon the law of express contracts.

(2.) On an implied promise, the action is properly brought in the name of the person interested in the consideration, or in the property, from which the right of action arises. In case of a purchase or exchange of goods, by an agent, even if the principal be not disclosed, or the bill of sale be made to the agent himself, the property immedi ately upon the execution of the contract, vests in the principal ;(2) and the right of action upon an implied warranty, or on fraudulent representations made to the agent, is in the principal, for the damage, which grounds the action, follows the property.(3.) In case of a sale by an agent, or other contract executed by him, whereby a consideration is delivered to the other party, which raises an implied promise of compensation, there are rights of action, according to the circumstances, in both the principal and agent. The rights of suit in the principal appear to be these. If a sale of the principal's property is made by an agent, the principal may sue on the contract of sale, for the purchase money, in his own name, grounding his claim upon the implied obligation to pay for a consideration received and this, although his name was not disclosed, or although a promissory note were given* to the agent in his own name; (4) although the principal's rights *644] are subject to any set-offs lawfully existing against the agent who has been allowed to deal in his own name as principal.(5) And the right of action in the name of an undiscovered principal is not confined to the contract of sale, but extends to every case of an exe

(1) See Bateman v. Phillips, 15 East, 272; Garrett v. Handley, 4 Barnewall & Cresswell, 664; Higgins v. Senior, 8 Meeson & Welsby, 834, 844.

(2) Lowry & Bruce v. Beckner, 5 B. Monroe, 41, 44; Waldo v. Peck, 7 Vermont, 434. (3) Beebee v. Roberts, 12 Wendell, 413, 417; White v. Owen, 12 Vermont, 361; House v. Fort, 4 Blackford, 294.

(4) Edmond v. Caldwell, 15 Maine, 340; Pitts v. Mower, 18 Id. 361; Higdon v. Thomas, 1 Harris & Gill, 139, 153; Girard v. Taggart, 5 Sergeant & Rawle, 19; Lapham e. Green, 9 Vermont, 407, 409; Edwards v. Golding et al., 20 Id. 40.

(5) See Fish v. Kempton, 7 C. B. 687.

cuted consideration vested in the third party, and thereby raising an implied assumpsit; as money paid or lent, work and labor done, &c. Thus in Tutt v. Brown, 5 Littell, 1, it was held, that where an agent had agreed to carry goods in the principal's wagon, not disclosing his principal, and had carried them accordingly, the principal might sue for the compensation, subject to set-offs against the agent; the right of property drawing the right of action to it. So, in Taintor v. Prendergast, 3 Hill's N. Y. 72, 73, where money had been advanced by the plaintiff's agent, without disclosing his principal, to the defendant in part payment of articles agreed to be delivered to the agent, and the defendant failed to deliver them, it was decided that the principal might sue in his own name to recover back the money. If property which an agent is transmitting for his principal, under an agreement made between the agent and the carrier, is lost, the principal may sue the carrier.(1) If, upon a sale, a note has been given to the factor or agent, in his own name, the beneficial interest is in the principal, who has a right to the possession of it, and to collect it; but upon the note he must sue in the promisee's name, unless he claim by endorsement; though upon the contract of sale, he might sue in his own name (2) The rights of suit in the agent appear to be these. If he has sold in his own name, without disclosing a principal, he may sue in his own name on the implied contract of sale, unless controlled by the principal:(3) and if he have possession of the goods which he sells, as a factor, or auctioneer, he may sue in his own name on the implied contract of sale, even where the property is known to be the principal's, unless the principal dissent. (4) The reason in the latter case appears to be, that such bailee has a possessory interest and a liability over; and as in case of an injury or amotion of the goods, he would be allowed to recover the whole damage in trespass, trover, or case, so in an action of implied assumpsit, as he has some interest, he is allowed to recover the whole damages resulting from the breach of the contract; for implied assumpsit, in its legal nature and gravamen, retains some of the properties of an action on the case. It is believed, that it is not the lien of the agent as between himself and the principal, that gives this right of action, but the possession and qualified property of the agent as bailee. Except in these cases, namely, where there is an express promise to the agent, or where he has contracted in his own

(1) N. J. Steam N. Co. v. Merchants' Bank, 6 Howard's S. C. 344, 380. (2) West Boylston Man. Co. v. Searle, 15 Pickering, 225, 230.

(3) See Atcherson's Adm'r v. Talbot, 5 Dana, 324, 326; Lapham v. Green, 9 Vermont, 407, 409; Whitehead v. Potter, 4 Iredell's Law, 257, 263.

(4) Williams v. Millington, 1 H. Blackstone, 81; Blum v. Torre, Riley, 153; S. C., 3 Hill's So. Car. 155; Towles v. Turner, 3 Hill's So. Car. 178, 180; Adm'r of Conyers v. Magrath, 4 McCord, 392; Depeau & Co. v. Hyams, 2 Id. 146.