6 How. Pr. 471 | N.Y. Sup. Ct. | 1852
It appears to be a well established rule in England that a principal whose agent has entered into a simple contract in writing in the business of the agency in the agent’s name, whether the agency was or was not disclosed at the time, may prove by parol the fact of such agency and maintain an action on the contract in his own name. Such proof it is there held does not contradict the contract; “ it merely lets in a third party who was really interested.” The cases in support of this doctrine are collected in Story on Agency, § 160, 163, 269, 270, and notes (see also Humble vs. Hunter, 12 Adolphus & Ellis, 310; Schmalz vs. Avery, 3 Eng. Law and Eq. Rep. 391, 395). Indeed the English rule goes further and holds the principal bound by and liable upon such a contract in like manner as if he had signed it (same cases). I am inclined to think, however, that the common law rule on the subject in this state is the other way; it certainly is as respects the liability of the principal on the contract (Newcomb vs. Clark, 1 Denio, 226, 229; Harp vs. Osgood, 2 Hill, 216, 219; Minard vs. Mead, 7 Wend. 68; Pentz vs. Stanton, 10 Wend. 271; Spencer vs. Field, id. 87; Allen vs. Coit, 6 Hill, 318; Evans vs. Wells, 22 Wend. 324; Townsend vs. Hubbard, 4 Hill, 351; Moss vs. Livingston, 4 Comst. 208). Hence, if the question in the present case as to the admissibility of the evidence offered at the circuit was to be decided upon common law principles, I should feel bound by the authorities to sustain the decision excluding it.
But I am satisfied that, under the provisions of the Code, the evidence offered in this case was admissible; and that assuming to be true, what was proposed to be proved, the action was well brought in the name of the plaintiff. Section 111, of the Code, provides that “ every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section
In the view of the case now taken, it would have been more proper for the plaintiff to have set forth the contract in his complaint, as made with Hótchkin, and alleged that it was made by him as agent of the plaintiff, and for the plaintiff’s benefit; and I should entertain doubts as to the right of the plaintiff to recover upon the complaint as framed, but for the fact that the defendant has himself set out the contract fully in his answer, and the plaintiff has adopted it in his reply as the one referred to in the complaint. This, I think, obviates the objection now suggested.
It follows that the evidence which was rejected should have been received. A new trial is therefore granted, costs to abide the event.