which related to land. If this section (§ 113) of the code was to be restricted and limited to those enumerated express trusts, the practical inconvenience arising from making the beneficial interest the sole test of the right to sue, and which that section (113) 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 trustée 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.' 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,' &c. The counsel for the respondent insists that the sole intention of the legislature in amending the section was to remove a doubt that had 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, or for the benefit 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 definitions and descriptions of the term fully sustain the conclusions reached in the preceding paragraph as to the legal meaning of the phrase "trustee of an express trust." It is abundantly settled that an agent cannot sue in his own name to enforce an implied liability to his principal; if by any possibility he should be a trustee under such circumstances, he would not be the trustee of an express trust.1 1 Palmer v. Fort Plain, &c. Plank R. Co., 11 N. Y. 376, 390, per Selden J. "There is no covenant or agreement running to these officers in terms. They, as agents of the § 175. Having thus attempted to arrive at a general definition of the term, I shall proceed to consider the cases which are embraced within it, and shall take at first those in which a "person with whom, or in whose name, a contract is made for the benefit of another" has sued in his own name. It is fully established by numerous decisions that when a contract is entered into expressly with an agent in his own name, the promise being made directly to him, although it is known that he is acting for a principal, and even although the principal and his beneficial interest in the agreement are fully disclosed and stipulated for in the very instrument itself, the agent in such case is described by the language of the statute, and may maintain an action upon the contract in his own name without joining the person thus beneficially interested. The following are particular instances, or examples town, convey the right to use the high- 1 Considerant v. Brisbane, 22 N. Y. 389, reversing s. c. 2 Bosw. 471. The plaintiff was agent for a foreign corporation which did business under the name of "Bureau, Guillon, Goden, & Co." The defendant applied to the plaintiff for stock in said corporation, and authorized the plaintiff to subscribe in his name for such stock to the amount of $10,000, and, in payment of the subscription, gave plaintiff two notes, each in the following form: "New York, March 1, 1855. On the first day of July, 1855, I promise to pay V. Considerant, executive agent of the company Bureau, Guillon, Goden & Co. the sum of $5,000, for which I am to receive stock of said company known as premium stock, to the amount of $5,000, value received. A. Brisbane." The plaintiff alleged that he had entered de fendant's name as a subscriber; averred a tender of the stock and a refusal to accept the same; and sued in his own name on the notes. The Court of Appeals held that he could maintain the action. The judgment of Wright J. is an exhaustive discussion of the whole subject. Denio J. dissented, but not from the general reasoning as to the true interpretation of the code. His dissent was based entirely upon a construction of the notes sued upon. He insisted that the promise in these notes was, in fact, made to the company, and not to the agent; and so the case did not fall within the terms of the statutory provision. Rowland v. Phalen, 1 Bosw. 43. Plaintiff sued on a contract in which he was described as "acting on behalf of I. S. and others," and stipulations were made by and with him. Cheltenham Fire-brick Co. v. Cook, 44 Mo. 29. The defendants executed a bond, wherein they bound themselves "to pay the said Cheltenham Fire-brick Co. for their own use and for the use of Evans and Howard, respectively," certain moneys under certain conditions. The company sued, alleging moneys due to it and also to Evans and Howard. Wright v. Tinsley, 30 Mo. 389. An agreement was entered into between Wright, the plaintiff, for the benefit of Mrs. Dawson, his daughter, and Tinsley, the defendant. “Wright obviously comes literally within this definition, and is the proper party plain of particular classes of cases, in which an agent has been permitted to sue, or may always sue, in his own name, because the contract is made with him directly, although on behalf of a known principal: on a sealed lease between the plaintiff, as agent for the owner, of the first part, and the defendant as the lessee; on a sealed contract between plaintiff and defendant, the plaintiff describing himself as agent for his sisters, and stipulating that they should act in defendant's theatre at specified wages, which the latter covenanted to pay, the action being brought for such wages; where the plaintiff, being the holder of the legal title to certain land, which he held, however, merely for the benefit of a married woman, was induced, by false representations, to execute a mortgage thereon, supposing it to be for her benefit and at her request, but in fact without any consideration paid to himself or to her, brought an action in his own name to restrain a foreclosure of the mortgage; 3 in an action on a policy of marine insurance "for the account of whom it may concern," and in case of loss the amount insured to be paid to the plaintiff or order; where a promise was made to the administrator of an estate, and he afterwards resigned, and another was appointed in his place, it being held that he was the proper party tiff." Weaver v. Trustees of the Wabash, &c. Canal Co., 28 Ind. 112; Rice v. Savery, 22 Iowa, 470, in which it was held that either the agent or the beneficiary might sue. See supra, § 140. Win ters . Rush, 34 Cal. 136. Action by Winters on the following note: "Twelve months after date I promise to pay W. M. Winters, or any authorized agent of the Pacific Methodist College, the sum of $1,150, for the endowment of said college." The court held the action to be properly brought in the name of the plaintiff, and approved of Considerant v. Brisbane. Ord v. McKee, 5 Cal. 515. Notes were given by defendant to "James L. Ord, agent of W. H. McKee, for the price of land owned by McKee, and sold to the defendant; and a mortgage to secure the notes was given back directly to McKee. The action is by Ord to foreclose the mortgage. Held, that Ord could sue on the notes; and, as the mortgage is a mere security for the payment of the notes and an incident of the debt, he could maintain the action to foreclose. Scantlin v. Allison, 12 Kans. 85, 88. A note was, by consent of all the persons interested, given to one who held it in trust for others. An action by this payee alone, without joining the beneficiaries, was sustained. And where A. was jointly interested with others in a claim, and made a contract in his own name with B., by which the latter agreed to collect the same, and account to him for the proceeds, he was permitted to maintain an action against B. without joining the others as coplaintiffs. Noe v. Christie, 51 N. Y. 270, 274. In Hubbell v. Medbury, 53 N. Y. 98, the provision of the code was held to be permissive only, and not to prohibit an action by the beneficiary, even without the trustee. 1 Morgan v. Reid, 7 Abb. Pr. 215. 2 Nelson v. Nixon, 13 Abb. Pr. 104. 3 Brown v. Cherry, 38 How. Pr. 352. 4 Walsh v. Wash. Mar. Ins. Co., 3 Robt. 202; Greenfield v. Mass. Mut. Ins. Co., 47 N. Y. 430. 1 to sue; where a grantee in a deed of land was simply acting as agent for another, and the purchase price was paid with that other's money, the grantee is the proper party to sue for the breach of a covenant which was broken immediately upon the execution of the deed, e. g., a covenant against incumbrances;2 a guest at an inn who had property of another in his possession, which was lost, was held to be the proper party to sue for its value; an auctioneer may sue for the price of goods sold by him, whether he have any interest in the price or not, and a sheriff, for the price of property sold by him on execution; 5 the master of a ship or other vessel may maintain an action for freight, or on any contract concerning the ship, entered into on behalf of the owners, or for the taking and carrying away, conversion of, or injury to, the cargo.7 8 3 6 § 176. Various kinds of bonds and undertakings generally required by statute, and given to some designated obligee, although showing on the face that they are designed to protect, secure, or indemnify other persons, are also contracts made "with, or in the name of, one person for the benefit of another;" and although the party immediately interested may in general sue in his own name, yet the obligee or person to whom the promise is made may always, unless forbidden by statute, maintain the action, and in some States is the only one who is permitted to do so. Among these are bonds in great variety given to the "people" or to the "State," conditioned upon the faithful discharge of their duties by public, local, or municipal officers, actions on which, except when otherwise directed by statute, may be brought by the people or the State; bonds running to the people or to the State, conditioned upon the faithful discharge of duties by various private or semi-private trustees, or by persons appointed in judicial proceedings and the like, such as those given by administrators, executors, or receivers; 10 those given by the trustees of 1 Harney v. Dutcher, 15 Mo. 89. 2 Hall v. Plaine, 14 Ohio St. 417, 423. 3 Kellogg v. Sweeney, 1 Lans 397. 4 Minturn v. Main, 7 N. Y. 220, 224; Bogart v. O'Regan, 1 E. D. Smith, 590. 5 Armstrong v. Vroman, 11 Minn. 220; McKee v. Lineberger, 69 N. C. 217, 239. 6 Kennedy v. Eilau, 17 Abb. Pr. 73. 9 Hunter v. Commissioners of, &c., 10 Ohio St. 515 (county treasurer's bond running to the State); State v. Moore, 19 Mo. 369 (sheriff's bond); Meier v. Lester, 21 Mo. 112 (constable's bond); Shelby Co. v. Simmonds, 33 Iowa, 345 (county treasurer's bond running to the county). 10 People v. Laws, 3 Abb. Pr. 450; Annett v. Kerr, 28 How. Pr. 324; People an estate, although entirely for the benefit of the persons having an interest in the estate; bastardy bonds 2 and the like; bonds given directly to a sheriff or other superior officer to indemnify a deputy sheriff or other subordinate officer against the consequences of acts done in the discharge of the latter's official duties; 3 a bond given by a town superintendent of common schools to the supervisor of the town, an action on which must be brought by the supervisor or his successor in office.1 $177. In all the instances heretofore mentioned, the contract. has been made with an agent in his own name, and the promise given to him, although the principal or beneficiary was known, and even expressly designated and provided for by the terms of the agreement. The rule is the same, and even more emphatically so, if the principal or beneficiary is, at the time of the contract, unknown or undisclosed, or not mentioned in the instrument. When a contract, even in writing, is made with and by an agent, and no mention is made of any principal or beneficiary, but the other contracting party supposes he is dealing with the former on his own private account, but in fact such person is an agent for an undisclosed principal and enters into the agreement in the course of his agency, actually effecting the contract on behalf of that superior behind him, the rule is well settled that the one who was thus a direct party to the agreement - the actual agent may bring an action upon it in his own name, or the principal may sue in his name.5 § 178. I have thus far considered only the particular class of trustees of an express trust specially described in some of the codes as "persons with whom or in whose name a contract is made for the benefit of others." There are numerous other and more properly designated classes of such trustees; and whatever be their nature, or the object of the trust, they may, by virtue of . Townsend, 37 Barb. 520. The reporter's head-note reads should be sued by the people: this is more than was decided. Baggott v. Boulger, 2 Duer, 160. The bond may also be prosecuted by the person interested and benefited. 5 Erickson v. Compton, 6 How. Pr. 471; Grinnell v. Schmidt, 2 Sandf. 706; Union India Rubber Co. v. Tomlinson, 1 E. D. Smith, 364; Van Lien v. Byrnes, 1 Hilt. 133; Higgins v. Senior, 8 M. & W. 834; Sims v. Bond, 5 B. & Ad. 389, 393, per Lord Denman. In ordinary contracts made by agents for their principals, 1 People v. Norton, 9 N. Y. 176, 179. 2 People v. Clark, 21 Barb. 214. Stilwell v. Hurlbert, 18 N. Y. 374, the latter are the real parties in interest, and must sue. Swift v. Swift, 46 Cal. 375. |