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covered from the office-keeper upon the evidence of the servant, who in that case had a release.(g) But in an action to recover goods against one who had received them by the tortious delivery of the servant, the latter was admitted to prove the fact, though it is not stated that he had a release.(h) And a servant who had embezzled money was admitted by Lord C. J. Holt in an action of trover to recover it from the person to whom it had been wrongfully transferred, though it does not appear that any release was given.(i)(2)

(g) Clark v. Shee, Cowp. 198.

(h) Bull. N. P. 290.

(i) Anon. 1 Salk. 289, and Bull. N. P. 290. "In trover against a pawnbroker, the servant embezzling his master's goods will be admitted to prove the fact."

(2) There seems to be some reason for doubting whether, under such circumstances, a servant would be a competent witness without a release. The rule of necessity does not apply, because that refers to the contracts of servants and agents made in the regular course of their employ. Here the acts done were not in the performance of their duty as servants. In Corking v. Jarrard, 1 Campb. 37, Lord Ellenborough refused to receive the testimony of a servant so situated without a release, and the release, though given, not being producible in court, the plaintiff was nonsuited. || As to the competency of a servant as a witness for his master in a case of trespass or other tort; see further, Noble v. Paddock, 19 Wend. 456; Barnes v. Cole, 21 Wend. 188; Dudley v. Bolles, 24 Wend. 465.||

CHAPTER V.

THE RIGHTS OF AGENTS AGAINST THIRD PERSONS.

SECTION 1.

THE rights which belong to agents are referable either to their representative, or individual character, according as the object is the advantage of the principal, or their own indemnity.

With respect to the first, it is clearly admitted, that where a contract is made by a factor, an action may be brought upon it in his own name. (a) And it is the same

(a) 1 Atk. 248; Bull. N. P. 130. || It would have been better if our author had in the first instance stated the general rule, and not have left it to be inferred that what is an exception, might be the rule itself. The general rule the case of a factor being to some extent an exception-is, that a mere agent, who has no beneficial interest in a contract which he has made on behalf of his principal, cannot support an action thereon. 1 Liv. Pr. & Ag. 215; Taintor v. Prendergast, 3 Hill, 72; Beebee v. Robert, 12 Wend. 416; Gilmore v. Pope, 5 Mass. Rep. 491; The Taunton and South Boston Turnpike Corporation v. Whiting, 10 Mass. Rep. 336; Thatcher v. Winslow, infra; Russ. Fact. & Brok. 240, 241. Therefore, where the defendant had agreed in writing to pay the rent of certain tolls which he had hired, to the treasurer of certain commissioners, it was decided, that an action for the rent could not be maintained in the name of the treasurer, the right to the tolls being vested in the commissioners, and the contract being in effect with them. Piggott v. Thompson, 3 Bos. & Pull. 147. So where A. having a general power of attorney to collect debts, &c., in the name and for the use of B. delivered a contract to an attorney to collect, who gave him a receipt for it, generally, as for collection, it was held, that A. could not maintain an action in his own name against the attorney for mo

thing whether the contract be made by the factor solely

ney collected by him on the contract so put into his hands. Gunn v. Cantine, 10 Johns. Rep. 387. A person who is a mere agent to sue for and collect money under a power of attorney, cannot be a party to a bill for an account in his own name, nor be joined as a co-plaintiff with his principal. Oakey v. Bend, 3 Edw. Ch. Rep. 482.

But where there is an express promise in writing to an agent, and his acts are subsequently ratified by his principal, the action may be in the name of the agent. "To hold otherwise," says Bronson, J. " would be to declare the contract nugatory, except where it was in the form of negotiable paper which could be transferred to the principal so as to enable him to sue in his own name. Gunn v. Cantine, on which the defendant relies, was upon an implied promise; and it was admitted in that case that the attorney might have sued in his own name, if there had been an express promise to pay the money to him." Harp v. Osgood, 2 Hill, 216. So, the payee of a note, although received by him as agent for another, may sue upon it in his own name. Buffum v. Chadwick, 8 Mass. Rep. 103. So, where a bill of exchange is endorsed to "S. S. F. Cashier," he may maintain an action upon the bill in his own name, notwithstanding he may be obliged to account to the bank of which he is cashier. Fairfield v. Adams, 16 Pick. 381. The general rule is well stated, by Bayley, J. in Sargent v. Morris, 3 Barn. & Ald. 277. "Now, I take the rule to be this; if an agent acts for me and on my behalf, but in his own name, then, inasmuch as he is the person with whom the contract is made, it is no answer to an action in his name to say, that he is merely an agent, unless you can also show, that he is prohibited from carrying on that action by the person on whose behalf the contract was made. In such cases however, you may bring your action, either in the name of the party by whom the contract was made, or of the party for whom the contract was made. In policies of insurance, it is a common practice to bring your action, either in the name of the agent or principal." And see Garrett v. Handley, 4 Barn. & Cress. 664.

Nor is the right of the agent to sue in his own name confined to an express contract whether written or verbal. Thus, one holding a bill of exchange or promissory note endorsed in blank, on a check or note payable to bearer, as a mere agent, may yet sue on it in his own name, and it does not lie with the opposite party to object the plaintiff's want of interest. Mauran v. Lamb, 7 Cowen, 174; Little v. O'Brien, 9 Mass. Rep. 423; Brigham v. Marean, 7 Pick. 40; Adams v. Oakes, 6 Carr. & Payne, 70. But see Sherman v. Roys, 14 Pick. 172; and in Thatcher v. Winslow, 5 Mason 58; Mr. Justice Story, said: "Unless the plaintiff is a real holder of the note, and has some interest in it, he cannot maintain an action as endorsee against the defendant. Here the proof is, that the Merchants Bank is the real holder, and the plaintiff is merely an agent for the bank.

upon h's own credit, as is generally the case with factors.

I take it not to be competent for a mere agent to maintain an action on a negotiable note in his hands, although it be with the consent of his principal. He must be the owner of the note, or have some substantial interest therein. Prima facie indeed, the possession of such a note is evidence of the party's being a holder for valuable consideration; but if it is admitted or proved aliunde, that he is but a mere agent, and holds the note as such, he is not competent to recover a judgment upon it in his own name." The learned judge, in his Commentaries, (Agency, § 394, n. 3,) may be deemed to have more than doubted his own judicial decision.

Where A. and B. assigned to the plaintiff all debts due to them, and gave him a power of attorney to receive and compound for the same, under which the plaintiff submitted to arbitration the matters in difference subsisting between his principals and the defendants; and the plaintiff and defendants mutually promised to perform the award; and the arbitrator awarded a sum of money to be paid by the defendants to the plaintiff as such at torney, and the action was brought in his name for the recovery of that sum; it was held, that the action was well brought in the name of the plaintiff Banfil v. Leigh, 8 Term Rep. 571. See further, Bawden v. Howell, 3 Mann. & Gr. 638; Harper v. Williams, 4 Ad. & Ell. N. S. 219; Van Staphorst v. Pearce, 4 Mass. Rep. 258; Fisher v. Ellis, 3 Pick. 322.

As to the right of a factor to maintain an action in his own name, the doctrine is stated by Mr. Russell, as follows: "It is now well settled, that where a factor although known to be such, sells goods in his own name on behalf of his principal, he may bring an action for the value thereof; and it has been held further, that even where by the sale-note the contract appears to have been made by the factor for his principal, yet if the factor declare thereon as on a contract made with himself, this will be no variance, [Infra, n. (ƒ)] But still it would appear, that if the contract, on the face of it, purported it to be made by the factor as the agent of a third person he could not sue thereon as principal without giving notice to the other contracting party that he was the person really interested.-As the factor although known to be acting as such, has still the right to sue third parties on contracts made with them in that capacity; so it follows a fortiori, that he possesses this right wherever he is the only known and ostensible principal, and consequently in contemplation of law, the real contracting party." Russ. Fact. & Brok. 241, 244, and authorities there cited. And see 1 Liv. Pr. & Ag. 217; Toland v. Murray, 18 Johns. Rep. 24; Murray v. Toland, 3 Johns. Ch. Rep. 573; De Forest v. The Fulton Fire Ins. Co. 1 Hall, 132; Girard v. Taggart, 5 Serg. & Rawle, 27. Bayley, J. in Sargent v. Morris, 3 Barn. & Ald. 277.

The renunciation of the agent's contract by the principal does not neces

abroad, or as the known representative of another;(b) and it is indifferent whether he act under a del credere com

sarily preclude him from maintaining an action; but he will still be entitled to sue the party with whom he has contracted, for any damages which he may have sustained by reason of a breach of contract by the latter. Thus : the plaintiffs being factors, and authorized by one H. to buy for him a quantity of oil, employed B. an oil broker, to make such purchase for them. The defendant afterwards agreed with B. to sell the oil to the plaintiffs; and bought-and-sold notes signed by B. were thereupon sent by him to the plaintiffs and defendant respectively, in which notes the goods were stated to have been " Bought for Messrs. Short, Brown & Bowyer, (the plaintiffs,) of Mr. W. F. Sparkman," (the defendant,) on certain terms therein specified. The plaintiffs sent a corresponding bought-note to H. their principal; and they afterwards, under a general authority from him, sold the goods for his account, through another broker, to B. & Co. The boughtand-sold notes in this latter transaction, mentioned the plaintiffs and B. & Co. as the buying and selling parties. On this sale being communicated to H. he returned the sold-notes which had been sent to him, declaring that he would have nothing to do with the oil either as purchaser or seller; and to this the plaintiffs assented. The defendant afterwards refused to deliver the oil in pursuance of his agreement; and the plaintiffs, being unable to fulfil their engagement with B. & Co. were obliged to pay them a sum of money in satisfaction, the market having risen since the time of making the last mentioned contract. The plaintiffs thereupon brought their action against the defendant for not delivering the goods, and the court held, that they were entitled to recover, notwithstanding the renunciation of the contract by H. and the acquiescence of the plaintiffs therein; because on the face of the contract it appeared that the plaintiffs had purchased as principals. Short v. Sparkman, 2 Barn. & Ad. 962. Russ. Fact. & Brok. 243, 244.

If, however, nothing more appears than the mere fact, that in making the contract in question the factor acted as the ostensible principal, this will give him only a qualified right to sue on such contract, and the principal will still have the power of superseding the factor's right by suing in his own name, or by taking any other proceedings whereby it becomes manifest that he intends to consider the other contracting party as his debtor. But still it must be borne in mind, that the rights of both the principal and of third parties, with reference to the present question, are subject to certain limitations in favor of the factor, which will be hereafter alluded to. Russ. Fact. & Brok. 245, 246; infra, n. (1); post, 364, et seq ||

(b) Bull. N. P. 130.

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