14 R.I. 546 | R.I. | 1884
This is an action of covenant broken. The covenant, if valid, is a covenant by which the defendants *547 bound themselves to receive from the plaintiffs, dealers in ice, and copartners under the firm of the Centennial Ice Company, at Pittston, Maine, between June 1, 1878, and October 1, 1878, five thousand tons of ice, and to pay them for it at the rate of one and one half dollars per ton, and to pay in full in cash at said rate for all the ice remaining unshipped October 1, 1878, the ice so remaining to be the property of the plaintiffs. The defendants made default by not receiving, though the plaintiffs were ready to deliver, the ice according to the contract. The plaintiffs sue for damages, claiming the stipulated price of the five thousand tons as liquidated damages. The defence is: first, that the defendants are not bound because the plaintiffs were not bound by the covenant, the obligations thereof being mutual or dependent; and second, that the plaintiffs can recover only their actual damages, the stipulated damages being manifestly designed as a penalty.
The first question is: Did the plaintiffs bind themselves by the covenant? The contract was not executed by the plaintiffs in person, but it was negotiated for them and signed by their agent, J.S. Bradstreet, who had a sufficient power of attorney under seal. The contract begins thus: "Agreement made this fifteenth day of February, 1878, between the Centennial Ice Company, of Pittston, Me., party of the first part, by J.S. Bradstreet, agent, and Joseph K. Baker, of Dennisport, Mass., and E.C. Baker, of Providence, R.I., parties of the second part, witnesseth." The stipulations contained in the body of the instrument purport to be stipulations between "the said party of the first part" and "the said parties of the second part," no names being given. It concluded as follows, to wit:
"In witness whereof the parties have hereunto affixed their hands and seals the year and day first above written.
(Signed) "J.S. BRADSTREET, Agent, [L.S.] "J.K. BAKER, [L.S.] "E.G. BAKER, [L.S.]"
The defendants contend that the execution was ineffectual because the instrument does not contain the signatures of the party of the first part by their agent, but only the signature of the agent himself. Undoubtedly in the execution of a deed by an agent the *548
most approved form is for the agent to sign the name of his principal, writing his own name below, with the word "agent" following, and the preposition "by" preceding it. See City ofProvidence v. Miller,
The defendants cite and rely on Townsend v. Corning, 23 Wend. 435; Townsend v. Hubbard, 4 Hill N.Y. 351; Brinley v.Mann, 2 Cush. 337; Lessee of Clarke v. Courtney, 5 Pet. 319, 350; but in each of these cases the deed was not only signed in the name of the agent, but the seal was stated in thetestimonium clause to be his seal. Of course the deed could not be the deed of the principal unless the seal was his seal. Indeed in Townsend v. Hubbard, supra, Chancellor Walworth declared that no particular form of words is necessary to make the deed the deed of the principal, "provided it appears upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affixed to the instrument is his seal and not the seal of the attorney or agent merely." InBellas v. Hays, 5 Serg. R. 427, likewise cited for the defendants, it did not appear that the seal was the seal of the principal, there being no testimonium clause, and it was assumed to be the seal of the agent. The agent, moreover, signed his own name simply, without the word "agent" appended. The counsel for the defendants quotes the words of Judge Story inLessee of Clarke v. Courtney, supra, that "the law looks not to the intent alone, but to the fact whether that intent has been executed in such manner as to possess a legal validity." *550 Undoubtedly. But, in his work on Agency, Judge Story, treating of this matter, says: "In all cases where the instrument purports on its face to be intended to be the deed of the principal, and the mode of execution of it by the agent, however irregular and informal, is not repugnant to that purport, it would probably be construed to be the deed of the principal, especially where thein testimonium clause is that the principal has thereto affixed his seal." Story on Agency, § 153, cited in Martin v. Almond,supra. Our conclusion is that the plaintiffs were bound by the contract, and therefore that the action can be maintained.
The second question is: Can the plaintiffs recover the stipulated price of the five thousand tons as liquidated damages? We think there can be but one answer to this question, namely, that the stipulation is a stipulation for a penalty. It is impossible that the plaintiffs retaining the ice can be entitled by way of indemnity to all which they would have received for the ice if it had been delivered. In Scofield v. Tompkins,
Judgment will therefore be given for the plaintiffs for the amount stipulated in the covenant, and the case will stand for chancerization under Pub. Stat. R.I. cap. 216, §§ 2, 3.