TIFFS. I. PLAIN- ject; and Mr. Justice Buller is reported to have remarked (p), that if one person make a promise to another for the benefit of a third, the latter may maintain an action upon it. And in a subsequent case (d), Eyre, C. J. said, "as to the case of a promise to A. for the benefit of B. and an action brought by B., there the promise must be laid as having been made to B., and the promise actually made to A. may be given in evidence to support the declaration." [*6] In Martin v. *Hind(1), the defendant, the rector of a parish, by a written certificate addressed to the bishop, appointed the plaintiff' his curate, and signified that he promised to pay the plaintiff a yearly stipend; it was held, that the plaintiff might sue for the salary (r). This case proceeded, however, upon the ground that the contract was entirely with the curate, that there was no promise to the bishop, and that the certificate was a mere assurance or information to him of a matter of fact, and the consideration was entirely between the plaintiff and defendant. The case of Carnegie v. Waugh (8), strongly shows, that a written or verbal promise to A. for the benefit of B. will support an action in the name of the latter; and the Chief Justice appeared to have been of opinion in that case, that the rule that a third person cannot take advantage of a deed inter partes, could not be extended to contracts not under seal. And an action may be maintained by the several partners of a firm upon a guarantee addressed and apparently given to one of them, if there be evidence that it was Exception given for the benefit of all (t). There is, in the case of bills of exchange and in case of promissory notes, an option of plaintiff, that might be considered an exception to the general peremptory rule, that the right of suing can only be in one person, or set of persons, viz. that a party to a bill may, by arrangement between the parties, be the plaintiff, although the bill at the time be in the rightful possession of another party to the bill (u). bills of exchange. Against carriers. V The action against a carrier for loss of goods sent by a vendor to a vendee, must in general be brought in the name of the latter, and not of the consignor; because the law implies that by the delivery to the carrier, the goods became the property of the consignee, and at his risk, (subject, of course, to the unpaid vendor's right of stoppage in transitu) (a). As the delivery to the carrier by the consignor presumptively vests the property in the goods in the con-signee, it is an inference of law, that the contract for the safe carriage is between the carrier and the consignee, and consequently the latter has the legal right of action; and this rule obtains, although the consignor paid the carrier for the conveyance of the goods, and the consignee gave no express directions [*] that the goods should be sent by the particular carrier selected *by the ven (p) Marchington v. Vernon, N. P. men- (r) Dougl. 142, S. C.; Cowp. 437. (s) 2 D. & R. 277. See 4 B. & C. 664; 3 B. & A. 280, 281. The decision in Crow v. Rogers, 1 Stra. 592, is perhaps hardly to be reconciled with this doctrine. The plaintiff declared, that Hardy, being indebted to the plaintiff in 70., it was agreed between Hardy and the defendant, that the defendant should pay the money to the plaintiff, and that Hardy should make the defendant a TIFFS. dee (y). In these cases it is, however, only an assumption of law that the goods 1. PLAINvested in the vendee and were at his risk upon the delivery to the carrier; and if by virtue of an agreement between the vendor and vendee, the goods did not become the property of the latter, and he was not at any risk with regard to the goods until they actually reached him, the consignor should be the plaintiff. But in general the property vests in the consignee by the mere delivery to the carrier, and the consignee ought to suc, although he ordered the goods to be sent to him, " on an insurance being effected, and on the terms of three months' credit from the time of arrival," for in such case the actual arrival of the goods is not a condition precedent to the vendee's liability to pay for them, and the vendor having complied with the stipulation as to insurance, had provided the vendee with a remedy over (≈). If goods by a bill of lading are consigned "to A." he is prima facie the owner, and must bring the action against the master of the ship if they be lost; but if the bill be special to deliver to A. for the use of B., the latter should bring the action (a) (8). And where by a bill of lading the captain was to deliver the goods, for the consignor and in his name, to the consignee, and the latter, at the time of the shipment, had no property in the goods, it was decided that the consignor should be the plaintiff in an action for an injury to the goods, although the consignee had at his own expense previously insured the goods (b). And it seems that an agent in this country, who ships goods to the foreign principal and pays the freight, may maintain an action in his own name on the bill of lading, if it express that the goods were shipped by the agent, and that the freight was paid here; for in such case a privity of contract is established between the parties by means of a bill of lading (c). In general a mere servant or agent, with whom a contract is expressed to When an be made on behalf of another, and who has no direct beneficial interest in the Agent transaction, cannot support an action thereon (d) (9). As where lands were (y) 3 B. & P. 584. (z) 4 B. & C. 219. (a) 1 Ld. Raym. 271; 3 B. & A. 283. (b) 3 B. & Ald. 277. (c) 3 Campb. 320. (d) Evans v. Evans, 1 Harr. & Wo. 239. (8) Vide Potter v. Lansing, 1 Johns. Rep. 215. M'Intyre, 1 Johns. Rep. 221. Ludlow v. Browne, 1 Johns. Rep. 1. {Sanderson. Lamberton, 6 Binn. 129. A. of Liverpool shipped goods which by the bill of lading were to be delivered to B. or his assigns in Philadelphia. The goods belonged to A. and the freight was payable in Liverpool. Held, that the bill of lading vested the property in the consignee, who might maintain an ac tion in his own name against the ship-owner for the negligent carriage of the goods. Griffith v. Ingledew, 6 Serg. & Rawle, 429. GIBSON, C. J. dissenting. } A cargo was consigued to merchants in New York, and the master put into Norfolk in distress; and was obliged to sell part of the cargo to pay expenses, and transferred the residue of the cargo to another vessel, obtaining a bill of lading for the delivery of the cargo to himself; and on the arrival of the latter vessel in New York, ordered the same to be delivered to persons other than the original consignees. In trover sued by the owner against the persons thus receiving the cargo, held, that they were liable to pay the value of the goods. Everett v. Coffin, et al., 6 Wend. R. 603. (9) Vide Medway Cotton Manufactory v. Adams and another, 10 Mass. Rep. 362. Bogert v. De Bussy, 6 Johns. Rep. 94. Gunn v. Cantine, 10 Johns. Rep. 357. Jones v. Hart's Exrs. I Hen. & Mun. 470. Gilmore v. Pope, 5 Mass. Rep. 491. Bainbridge v. Downie, 6 Mass. R. 253. Kinsey v. Hollingshead, 1 Penn. 380. So, the trustees or committee, for conducting the affairs of an unincorporated company, cannot maintain an action in their own name. Niven v. Spickerman, 12 Johns. Rep. 401. It is different in the case of a note or check payable to bearer; in the latter case the opposite party cannot raise the objection of the plaintiff's want of interest. Mauran v. Lamb, 7 Cow. R. 174. A mere agent,holding such a note or check, may sue on it in his own name. If one effects an insurance for whom it may concern; and in his declaration he avers may sue. TIFFS. 1. PLAIN- let by auction, and there was an agreement between the intended lessee and the auctioneer, stating the terms, and subscribed by the intended lessor ; it was held, that the auctioneer could not sue the intended lessee for use and occupation, or for breach of the agreement (d). And where A. by a memorandum in writing, signed by himself only, agreed in writing to pay the rent of certain tolls which he had hired, to the treasurer of certain commissioners (e), it was deci[*8] ded that no *action for the rent could be supported in the name of the treasurer, the contract being in legal contemplation with the commissioners, and to pay them (f). And where several persons took a lease of premises, to be used as a Jewish synagogue, and the seats therein were let by an officer annually appointed, whose duty it was to let them and receive the rents, and apply them partly in payment of the rent secured by the lease, and partly for general purposes connected with the establishment; it was held, that the lessees were properly made the plaintiffs in an action to recover the rent due from an occupier of one of the seats (g). Upon the same principle, the captain of a ship cannot maintain an action in his own name upon an implied promise to pay demurrage, although he may on an express contract with him to pay it (h). And it has been determined that the mayor of a corporation, who, on the sale of certain lands by auction, of which the corporation were the vendors, signed a contract on behalf of himself and the corporation with the purchaser, for the due performance of the conditions of sale, could not, in his individual capacity, maintain an action against such purchaser for the breach of his contract (i). But when an agent has any beneficial interest in the performance of the contract, as for commission, &c., or a special property or interest in the subjectmatter of the agreement, he may support an action in his own name upon the contract; as in the case of a factor, or a broker (k), or a warehouseman, or carrier (1), an auctioneer (m), a policy broker whose name is on the policy (n), (10) or the captain of a ship for freight (o). So where a contract is in terms (d) Evans v. Evans, 1 Harr. & Wo. 239. (f) 3 B. & P. 147. See Sir J. Mans- (h) 4 Taunt. 1, 52. See 3 Chit. Com. (i) 2 Taunt. 374, 387. See 5 Moore, 277. (k) 1 T. R. 112; 2 Esp. Rep. 493; 1 H. Bl. 82; 7 T. R. 359; 11 East, 180; 4 Camp. 195; 1 M. & S. 581. (1) See per Lord Ellenborough, 1 M. & S. 147. (m) 1 H. Bl. 81; Taunt. 237, S. C. 2 Marsh. 497, 501; 7 See 5 B. & Ald. 333. (n) Park on Ins. 403; 1 T. R. 114; 2 M. & S. 485, 486; 4 B. & C. 666, but not otherwise; 1 M. & S. 497; 15 East, 4. In Cosack v. Wells, A. D. 1813, the plaintiff effected the policy thus: "I. C. agent;" and though he was jointly interested with another person, he recovered in a separate action in his own name, the declaration averring that he was jointly interested with another person. (0) 6 Taunt. 65; 4 Taunt. 189. that the policy was made for himself and another; yet, he is entitled to maintain the action in his own name. Ward v. Wood, 13 Mass. R. 539. It is otherwise, however, where his own interest was fully insured in a prior policy; in the latter case, if he sue, he must state the interest of the others concerned, and bring the action expressly as agent. Gardner v. Bedford Ins. Co., 17 Mass. R. 615. (10) De Vignier v. Swanson, 1 Bos. & Pul. 346, n. b. Two persons by name insured; and in the policy was added or whom it may concern, with a clause also in the policy that the loss should be paid to the two persons named, held, that they might recover the whole sum insured, although it appeared they were in TIFFS. made with an agent personally, *he may sue thereon (11); and if a servant per- I. PLAINsonally carry on a business for his principal, and appear to be the proprietor, and sell goods in the trade as such apparent owner, he may, it seems, sustain an action in his own name for the price (p). Where the supposed principal repudiates the contract, the agent may sue after notice of the facts to the defendant; as to recover back a deposit paid on the sale of an estate (q). Where a person assumes, on the face of the contract, the character, not of a principal, but of an agent to another named person, he cannot retract that assumed capacity and sue as a principal, without previously undeceiving the defendant, and giving him notice of the real nature and extent of his, the plaintiff 's, claim and interest (r). And it should be observed that in these cases the right of the agent to sue on a contract made by him for his principal, whether it be expressed that the agent contracts personally or on the behalf of another, is subservient to the right of the principal to interfere, and to bring the action. in his own name upon the unperformed agreement, in exclusion of the agent's right, and although the agent has not expressly disclaimed (s). There is an exception in the case of a contract under seal entered into with the agent personally in a matter within the scope of his authority; in this instance the implied right of action of the principal merges in the higher security taken, by his authority, by the agent, and the remedy is in the name of the latter only (t) (12). (p) 2 C. & P. 49; 3 Campb. 320; 3 Stark. R. 147; 4 B. & C. 666; 4 Bing. 2. (q) 3 Stark. Rep. 145. (r) 5 M. & Sel. 383. (s) Stra. 1182; 1 Campb. 337; 1 M. & S. 579, 580; 5 M. & S. 385, 386, 390; see (t) 1 M. & S. 575; 5 B, & C. 355; 4 fact owners of but one half; the other half belonging to a person not joined as plaintiff in the action. Jefferson Ins. Co. v. Cothral, 7 Wend. R. 72. (11) { Potter v. Yale College, 8 Conn. Rep. 60.} An action on a promissory note given to the agent of a company, lies in the name of the agent, and his styling himself agent, &c. in his writ and declaration, was held to be merely descriptio persona. Buffum v. Chadwick, 8 Mass. Rep. 103. So, where A. for his own account and risk, carries on trade in the name of B., an action for goods sold, in the course of such trade, is properly brought in the name of B. Alsop and others v. Caines, 10 Johns. Rep. 396. But where goods are purchased from a factor, scienter, with intent by the purchaser, to set off against the purchase, a demand which he may have against the factor, the principal may, in such case, as on a sale made immediately by himself, have a suit against the purchaser, any time before payment to the factor. Brown & others v. Robinson & Hartshorne, 2 Caines' Cas. 341. Although a simple contract may be enforced in the name of the promisee when made for the benefit of a third person, if the promisee has an interest in the subject matter; but if the contract is under seal and inter partes, the action must be sued by a party to the instrument. Spencer v. Field, 10 Wend. R. 87. The person having the legal interest and also furnishing the consideration, is the proper person to sue on a promise made to him. Sailly . Cleveland, 10 Wend. R. 156. (12) Where money has been deposited by an agent, on the account of an unknown principal, an action to recover back the deposit, lies in the name of the principal. The Duke of Norfolk v. Worthy, 1 Campb. 337. Vescher r. Yates, 11 Johus. Rep. 23. Yates v. Foot, 12 Johns. Rep. 1. So, where a factor sells his principal's goods, the principal may, on notice to the buyer, before payment, not to pay the factor, sue the buyer in his own name. Kelly v. Munson, 7 Mass. Rep. 324. Railton v. Hodgson, 15 East's Rep. 67. A factor selling goods in his own name, and being alone known to the purchaser, may maintain an action for the price although he receives no del credere commission; but if there has been a communication between the principal and factor, by which the former agrees to consider the purchaser as his debtor, and takes steps for recovering the debt directly from him, the factor's right to sue is gone. Sadler v. Leigh and another, 4 Campb. 195. An action to recover back a wager in the event of a horse race (under the acts of the State of New York to prevent horse racing and gaming) is properly brought by the person who made the bet, although he acted as the agent or depository of other persons, VOL. I. 2 1. PLAIN TIFFS. Qualified right to use the name of a trustee, &c. reference If a principal allow his agent to appear to be the principal, and to contract in the latter character, and the defendant has thereby been induced to give credit to the agent, the principal's right of action in his own name is subject to the set-off which the defendant has against the agent, and which would be available if the latter were the plaintiff (u) (13). If a trustee or husband object to his name being used in an action for the benefit of the cestui que trust or wife, the latter may, after tendering a sufficient indemnity, use his name, or may file a bill in equity for that purpose (x). [10] When the contract was made with several persons, whether it were under 2dly. With seal, or in writing but not under seal, or by parol, if their legal interest were joint, they must all, if living, join in an action in form ex contractu, for the number of breach of it, though the covenant or contract with them was in terms joint and plaintiffs; and when several (y) (14). And if it appear on the record that there was another cove to the Haywood v. Sheldon, 13 Johns. Rep. 88. Et vide Vischer v. Yates, and Yates v. Foot' ubi sup. Bell et al. v. Gilson, 1 Bos. & Pull. 351. If an agent employ a broker to effect an insurance for his principal, the broker, who knew his employer was acting as agent, cannot retain the money he receives from the insurer for a debt due from such agent to himself. Foster v. Hoyt, 2 Johns. Cas. 327. The sale by a factor of several lots of goods, belonging to several persons, to one purchaser; taking the promissory note of the latter to himself; held, that this did not prejudice the rights of the several principals, who were, notwithstanding, entitled to sue severally the purchaser. Corlies v. Cumming, 6 Cowen, 181. (13) A mere receiptor of goods taken by the sheriff upon an execution, while such goods remain constructively in the custody of the law, has not such a general or special property in the goods as will enable him to recover in trever or replevin, in which actions the property in the goods is drawn in question. In trover or replevin, it is a good defence to the action, that the plaintiff has neither the general or special property in the goods; but in an action of trespass, a bare possession is sufficient to enable the plaintiff to recover against a wrongdoer, who takes the property out of his possession without authority. Cook v. Howard, 13 Johns. Rep. 276. Demick v. Chapman, 11 ib. 132. Schermerhorn . Van Valkenburgh, ib. 529. Aikin v. Buck, 2 Wend. Rep. 466 Butts v. Collins, 13 ib. 139. Where the agent of a defendant in an execution became the receiptor to the sheriff of the property of his principal, levied upon by virtue of such execution, and agreed with the sheriff and the plaintiff in the execution, that he would cause such property, consisting of yarn and other materials found in a factory, to be manufactured into flannels, and would furnish such materials as should be necessary for that purpose, the avails to be applied on the execution after satisfying his advances-and the agent accordingly made the necessary advances, caused the materials to be manufactured into flannels, and put them into the hands of a manufacturer to be dressed, it was held, that the agent was not entitled to set off the value of such flannels, in an action brought by the manufacturer against the agent for work done, although the manufacturer, after the flannels were dressed, had refused to surrender them to him. Butts v. Collins, 13 Wend. Rep. 139. It is only where the agent has a lien upon the property sold by him, or has a commission del credere, that he has a right to sue in his own name on a contract made for his principal, or to set off a demand due to his principal against his own private debt. Ib. (14) Where a bond is joint in form only, but several ratione subjectæ materiæ, an action may be maintained in the name of one of several obligees. But, it seems, if he can maintain such an action on the bond, he must set forth the bond truly, and then by proper averments, show a cause of action to himself alone, clearly embraced within the condition of the band. Ehly . Purdy, 6 Wend. Rep. 629. In that case, it was held, that one of two |