have been referred to, this court cannot, when sitting as a court of law say, that an express and written promise to do a thing to Rainy or Wolcott, is a contract to do the same thing to the United States. It looks in vain to the writing itself for such an engagement; and that is the only source from which it has a right to make its deductions. It is on that which the plaintiffs have relied, and if they do not succeed in showing an assumpsit there, they fail in their action altogether." The United States v. Parmele, 1 Paine's C. C. Rep. 258. So it was held that it was not competent to show by parol that the promissee was the agent of another person, for the purpose of enabling such person to maintain an action in his own name on the agreement. Jewett, J. "The rule in regard to parties to actions seems to be, that every action on an express contract must be brought in the name of the person to whom the engagement violated was originally made, unless it is transferable, as a negotiable note, &c. In the present case, the promise or agreement is expressly made with Peters; Clark's name does not appear in the writing. It was not competent to contradict or amend the agreement by parol proof, by substituting Clark's name as the promissee in place of Peters." Newcomb v. Clark, 1 Denio, 226.

The case of an action on a policy of insurance effected by a broker, when not under seal, is an exception to the rule. Post, 362. And the case of negotiable paper is another exception.-Where a promissory note was made payable "to the cashier of the Commercial Bank" or his order and the consideration proceeded from the bank, it was held, that an action on the note might be maintained in the name of the bank as the promissee. Dewey, J. delivering the opinion of the court said: "The note is in terms payable to the cashier of the Commercial Bank ;' and the defendant contends, that the action should have been brought in the name of the person who was then cashier, and will not lie in the name of the corporation. It is not denied that the property of the note is, and ever has been in the plaintiffs; but the argument is, that the promise being in the name of the cashier, although made to him in trust, and for the benefit of the corporation, it can only be enforced in his name.-It is a familiar rule of pleading, that contracts must be declared on according to their legal import and effect, rather than their literal form. We should, therefore, first seek the true import of the contract under consideration. If it be in truth a promise to the individual who was cashier when it was made and not to the corporation, it is very clear that the plaintiffs cannot maintain this action. For he alone to whom a promise is made, or in whom its legal interest is vested, can enforce its performance, or complain of its breach. A contract may be made to or with a person, as well by description as by And when the parties can be ascertained, it will be valid, although their names be mistaken or their description be incorrect. It cannot be doubted that a note to the Commercial Bank would be valid and might be declared on as a promise to the plaintiffs, although their legal name is 'The President, Directors and Company of the Commercial Bank.' So a contract with the stockholders, or with the president and directors, or with the directors of the Commercial Bank, would doubtless be, in its legal

name.

in the latter case the principal has the benefit of the factor's evidence.(c)

And though the agent act by a del credere commission, which makes him liable at all events to his employer,(1) yet the responsibility of the buyer to the employer is not altered by that circumstance. (d)

Contracts made for the benefit of another, but without his privity or direction, may be rejected or affirmed at his election.(2) But by making the election to affirm it he

effects, a contract with the corporation. It is not easy to perceive why a contract with the cashier of a bank is not a contract with the bank itself. A corporation being an incorporeal being and having no existence but in law, can neither make nor accept contracts, receive nor pay out money, but by the agency of its officers. They are the hands of the corporation by which they execute their contracts and receive and make payments. Of these officers the cashier is the principal. If the note had been made to the corporation, by its appropriate name, the same officer would have demanded or received payment, or would have given notice of non-payment and protested it, and, had it been negotiated, would have made the indorsement, and in precisely the same form as he would upon this note.-The principle is, that the promise must be understood according to the intention of the parties. If in truth it be an undertaking to the corporation, whether a right or a wrong name, whether the name of the corporation or some of its officers be used, it should be declared on and treated as a promise to the corporation. And there is no so safe criterion as the consideration. If this proceed from the corporation, it raises a very strong presumption that the promise is made to them. If no express promise be made, but it be left to legal implication, it must be to them." The President, &c., of the Commercial Bank v. French, 21 Pick. 486.||

(d) Grove v. Dubois, 1 T. R. 113. 4 B. Ab. 602, Merchant (B). Ante, 111, (3). || Leverick v. Meigs, 1 Cowen, 646, 664.||

(2) [In the case of Routh v. Thompson, 13 East, 274, where a person made an insurance for the benefit of A. without his knowledge, it was held that A. might subsequently ratify it, and the insurance would enure to his benefit upon the principle that omnis ratihabitio retrotrahitur, et mandato priori æquiparatur. See also Hagedorn v. Oliverson, 2 Maule & Selw. 485, S. P. The plaintiff in this case was a general agent for a merchant residing at Carthagena, who was in the practice of making shipments to New York. On the 19th of February 1827, the plaintiff without any orders from his principal, caused an open policy of insurance for $5000 on goods laden or to be laden on board any vessel from Carthagena to New

adopts the agency altogether, as well that which is detrimental, as that which is for his benefit.(e)

*2. But in seeking to enforce contracts entered [*325] into by agents, the principal is subject to have them impeached by any conduct of his agent, which would have had that effect if proceeding from himself. Every

York, on account of his principal, to be executed by the defendants who received the premium. Previously, on the 17th of February, the agent had written to his principal informing him of his intention to effect said policy, and on the 23d of March following, the principal replied to his letter, and conditionally affirmed his act. On the 21st of February, two days after the policy was effected, a loss occurred by the perils insured against, on goods shipped by the principal on board of a vessel from Carthagena to New York. It was held that they were covered and protected by the policy; that the defendants having contracted with the agent for the express benefit of the principal, and having received the premium, could not be permitted to show any want of authority in the agent, and that the principal having adopted the act of the agent, could enforce the contract in the name of the agent. Bridge v. The Niagara Ins. Co. of New York, 1 Hall, 247. And see ante, 171; Taylor v. Salmon, 4 Myl. & Cr. 134, 139; Shaw v. Nudd, 8 Pick. 9; 1 Liv. Pr. & Ag. 52.||

(e) Wilson v. Poulter, 2 Str. 859. || Benedict v. Smith, 10 Paige, 127; ante, 172, 175; Kelly v. Munson, 7 Mass. Rep. 323. It is on this principle that actions of tort are converted, as they frequently are, into actions of contract. The party injured (as by an unlawful conversion and sale of his property) may waive all complaint of the wrong done him by the conversion, and may adopt the sale as made for his benefit; but if he do so, his damages will be limited by the proceeds of the sale, however short of the actual value of the property. And see ante, 172, et seq.+ || "In many cases of the illegal conversion of property by a third person, as well as by his agent, the principal may have an election of remedy; as for example, in the case of a tortious sale, he may waive the tort, and maintain an action for the proceeds of the sale; or he may bring trover against the wrong-doer. Sometimes the one course is more desirable than the other; but it is so, only when the interests of the principal may be enhanced thereby. Thus, if the wrong-doer has sold the goods of the principal for a high price, it will be most favourable to the latter to pursue his remedy for the price or proceeds. On the other hand, if the goods have been sold at an under value, then an action of trover would be the more beneficial remedy, as the principal would be entitied to recover the full price or value of the goods." Story's Agency, § 439; Kelly v. Munson, 7 Mass. Rep. 323.||

species of fraud, misrepresentation, or concealment, therefore, in the agent affects the principal's right to recover.(ƒ)

3. Moreover, if an agent be permitted to deal as if he were a principal, the party dealing with him, and ignorant of his representative character, is entitled to the same rights against him as if he were in fact the principal.(A) So that, under these circumstances, he may set off against the demand of the principal, a debt due from the factor to himself.(3)

[*326] *It has been seen (4) that a purchaser is discharged by payment to a factor, unless where notice has been given by the principal not to pay him and that the payment, even after such notice, is warranted in the following cases. 1st. Where the factor acts under a del credere commission, in which the principal gives credit to him, and he to the buyer.(5) 2d. Where the factor has a lien upon the price for his balance, which entitles him to receive the payment. These seem to be the only cases in which a purchaser, dealing with a factor, and being aware of his representative capacity, can safely pay the price to him after notice from the principal; but if a buyer deal with a factor or broker wholly in his own name, and without knowledge of any other person being a party to the

(ƒ) Ante, 194, 303. + Earl of Ardglasse v. Muschamp, 1 Vern. 239.4 (A) Westwood v. Bell, 4 Campb. 349; stated at some length, ante, 151, n. (19). Where an agent employed to collect money in New York, and to remit it to the principal, lent it there to the defendants, to whom he was indebted in a sum larger than the amount lent, telling them that he could lend it until he should be ready to return home, but without informing them that the money belonged to his principal, it was held, that the defendants could retain the money as against the principal, even after notice that it belonged to him. Lime Rock Bank v. Plimpton, 17 Pick. 159.|||

(3) [On the same principle it has been decided, where an auctioneer sold the goods of B. as the goods of A., and the buyer (without notice from the auctioneer not to pay A.) took the goods with the auctioneer's assent, and paid the price of them to A., that the anctioneer could not afterwards maintain an action for the price. Coppin v. Walker, 2 Marsh. 497; 7 Taunt. 237, S. C.]

contract, he is entitled, in the absence of collusion, to regard the debt as due to the factor or broker, so as in an action brought by the principal, to set off a debt due from the factor to himself, or to defend himself by a payment to him.(g) This question is distinct in principle from that just adverted to, of payment to a factor having a lien upon the price. There the indemnity is founded upon the title of the latter to receive the money; and therefore it is indifferent whether or not the buyer knew at *the time of contracting that he was dealing with [*327] an agent ;(6) whereas the right now spoken of is the right of the debtor, and is built upon this principle, that where the buyer has been led to contract under an impression that his contract is with one person, he cannot afterwards be defrauded of the rights which he has against that person by the introduction of a third to whom he was a stranger; and therefore this right can only exist in those cases where the purchaser deals with the agent as a principal.(h)

(g) Post, p. 329; 2 Kent's Comm. 632; Merrick's Estate, 2 Ashmead's (Pa.) Rep. 485; Taintor v. Prendergast, 3 Hill, 72.||

(6) Hudson v. Granger, 5 B. & A. 27, ante, p. 287, 288.

(h) This principle is collected from the case of Stracey and others v. Decy, London Sittings after Mich. 1769, 7 T. R. 361, which, though not a case of principal and agent, does not seem the less applicable to the present purpose. Assumpsit for goods sold; pleas, non assumpsit and set-off. The plaintiffs jointly carried on trade as grocers: but Ross was the only ostensible person engaged in the business, and appeared to the world as solely interested therein. By the terms of the partnership, Ross was to be the apparent trader, and the others were to remain mere sleeping partners. The defendant was a policy-broker; and being indebted for grocery (as he confessed) to Ross, he effected insurances and paid premiums on account of Ross solely, to the amount of his debt; under the idea that one demand might be set off against the other. Payment of the money due from the defendant was demanded by the firm; and was refused by him on the ground of his having been deceived by the other partner's keeping back, and holding out Ross as the only person concerned in the trade. Lord Kenyon, C. J. was of opinion, that as the defendant had a good defence by way of set-off as against Ross, and had been, by the conduct of the plaintiffs, led to believe that Ross was the only person contracted with, they could not