48 How. Pr. 210 | N.Y. Sup. Ct. | 1874
— The principal question arises upon the nonsuit granted by the justice. The attorney for the appellant claims that the plaintiff was a trustee of an express trust within section 113 of the Code, and that the suit was properly brought in his own name. The Code provides that “ every action must be prosecuted in the name of the real party in interest,” except that “an executor or administrator, a trustee of an express trust or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted ” (Gode, §§ 111, 113); and it is declared that “ a trustee of an express trust, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another ” (§ 113).
Did. the plaintiff make this contract in his own name for the benefit of the Remington Agricultural Company, within the meaning of this section' of the Code % If he did, the justice erred in granting the nonsuit. It is plain that the plaintiff was not the real party in interest; still he may sue, in his own name, if he is a trustee of an express trust within the meaning of that term in section 113 of the Code. Is he a person with whom, or in whose name, a contract is made for the benefit of another ? As such he would be authorized to sue the defendant in his own name, notwithstanding the beneficial interest was in the Remington Agricultural Company. The contract was made with the plaintiff in his own name and the defendant promised to pay him for the machine, and the plaintiff was authorized to receive payment and grant a discharge to the defendant of the claim.
In Griswold agt. Schmidt (2 Sandf., 706) it was held that “ a factor or mercantile agent who contracts in his own name, on behalf of his principal, is a trustee of am, express trust within the meaning of section 113 of the Code, and is a proper party to bring an action upon the contract.” The court, on page 709, says: “It has been generally supposed that the words ‘ express trusts,’ in this section, refer to trusts
It has been held that a mere agent- who contracts in his own name, and without disclosing the name of his principal, is a trustee of cm express trust, and may maintain an action upon the contract in his own name without joining his principal, or the principal may sue upon the contract (Morgan agt. Reid, 7 Abb. Pr. Rep., 215 ; The Union India Rubber Co. agt. Tomlinson, 1 E. D. Smith, 380).
In Bogart agt. O'Reyan (1 E. D. Smith, 590) it was decided that “ an auctioneer, who, in his own name, sells goods for a third person, is a trustee of an express trust, within the meaning of section 113 of the Code, and may sue upon the contract of sale without an assignment to him of the cause of action.”
In Minturn agt. Main (3 Selden, 220) it was decided that a public auctioneer who sells goods for another may maintain an action for the price, although he has received his advances and commissions, and has no interest in the property or its proceeds.
In Brown agt. Cherry (56 Barb., 635, and 38 How., 352) the doctrine established by the cases above cited is distinctly approved and reiterated.
In order to constitute a trust in respect to money'or personal estate, no formal or written agreement is necessary (Day agt. Roth, 18 N. Y., 444).
The question involved in this casé would not have been changed if the contract of sale had been reduced to writing and signed by the parties; the plaintiff’s character as trustee of an expressed trust, under section 113 of the Code, would not be different, nor his right to sue have been in any way affected by such written contract.
In Considerant agt. Brisbane (22 N. Y. Rep., 389) the plaintiff was the executive agent of a foreign corporation, and authorized to receive subscriptions to its capital stock; the defendant subscribed for and received stock of the com
I think, upon these authorities, there can be but little question that the plaintiff was a trustee of an express trust within the meaning of section 113, as it now stands.
The counsel for the respondent contend that the plaintiff should have sued as trustee of an express trust, and alleged that fact in his complaint. Ho question was raised upon the trial in regard to the pleadings. The plaintiff was nonsuited on the ground that he was not the real party in interest, and I think it is now too-late, upon this appeal, to raise a question in regard to the complaint which was not raised upon the trial. If the objection had been made before the justice the complaint, if defective, could have been amended, and a motion for a nonsuit denied, if that had been the only difficulty. The defendant treated the transaction throughout as a sale from the plaintiff directly to him, and admitted in his answer that he purchased the machine in question of the plaintiff, and sought to charge the plaintiff personally with a breach of warranty on the sale of the machine, and claimed a large amount of damages in his answer, resulting from a breach of such warranty; and there can be no question about the liability of the plaintiff, personally, to the defendant, if a breach of warranty had been proven on the trial.
My impressions on the argument of this appeal were strongly in favor of sustaining the decision of the justice in nonsuiting the plaintiff, but I have since thoroughly and carefully examined all the authorities bearing upon this question, and I am satisfied the justice was wrong in nonsuiting the plaintiff. I am clearly of the opinion that the plaintiff, within both letter and spirit of section 113 of the Code, was a trustee of an express trust, and was authorized to bring this suit, in his own name, to recover for the machine in question. I think it was the intention of the legislature, by this
The justice erred in nonsuiting the plaintiff, and the judgment must be reversed, with costs.