COVENANT.

BRADSTREET ET AL. v. BAKER ET AL.

SUPREME COURT OF RHODE ISLAND. 1884.
[14 R. I. 546.]

On demurrer to the pleas.

July 12, 1884. DURFEE, C. J. This is an action of covenant broken. The covenant, if valid, is a covenant by which the defendants 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 Oct. 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 Oct. 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. "J. S. BRADSTREET, Agent,

(Signed)

"J. K. BAKER,

"E. G. BAKER,

[L. S.]

[L. S.]

[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 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 of Providence v. Miller, 11 R. I. 272,

277, and cases there eited. But the form is not material provided it appears on the face of the instrument that the deed was executed by the principal acting through his agent and not by the agent himself. In Wilks v. Back, 2 East, 142, an arbitration bond was given by Mathias Wilks for himself, and under a power, for his copartner James Browne. The signatures were affixed as follows, to wit: "Mathias Wilks, [L. s.]." "For James Browne, Mathias Wilks, [L. s.]." The Court of King's Bench decided that the execution was good. "Here the bond was executed," say the Court, "by Wilks for and in the name of his principal; and this is distinctly shown by the manner of making the signatures. Not even this was necessary to be shown, for if Wilks had sealed and delivered it in the name of Browne, that would be enough without stating that he had so done." The case was followed with approval in Mussey v. Scott, 7 Cush. 215, where the form of the signature was "B. for A." It was also followed by the Supreme Court of Vermont in McDaniels v. Flower Brook Manuf. Co., 22 Vt. 274. There the operative clauses were in the name of the corporation" by William Wallace, their agent; the covenants were in the name of the corporation. The deed concluded, "In witness whereof we have hereunto set our hand and seal," and the signature was, "William Wallace, Agent for the Flower Brook Manufacturing Company." The court said that the execution, in connection with what preceded it, must be understood to be an execution in the name of the company. And see to the same effect Martin v. Almond, 25 Mo. 313. It seems to us that there is no material distinction between these cases and the case at bar. The case at bar would be identical with them if the words, “for the Centennial Ice Company,” had been added to the signature. But those words if added would express nothing which is not expressed without them by the signature, taken in connection with the testimonium clause and covenant which precede it. The seal is stated in said clause to be the seal of the principals, and the hand to be their hand, evidently because the agent signed for them. In Abbey v. Chase, 6 Cush. 54, and in Ellis v. Pulsifer et al., 4 Allen, 165, the Supreme Judicial Court of Massachusetts decided that such an execution did not bind the agents, the action being against the agents, but expressly refrained from saying that it did not in their opinion bind the principals. See also Varnum, Fuller, & Co. v. Evans, 2 McMullan, 409; Hunter's Admr's v. Miller's Exec'rs, 6 B. Mon. 612; Bryan v. Stump, 8 Gratt. 241; M'Ardle v. The Irish Iodine Company, 15 Ir. C. L. Rep. 146. It is true that some of the text-books say, and some of the cases seem to imply, that the name of the principal must necessarily appear in the signature. But we do not see the necessity. When A., being agent for B., signs the deed, "A. for B.," or " A., agent for B.," his own name is the signature, the other words being used to denote that he makes the signature not for himself but for his principal. And surely if this be so, it is unnecessary to use those words, if the thing which is denoted by them be otherwise apparent.

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 the testimonium 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 prin cipal, and that the seal affixed to the instrument is his seal, and not the seal of the attorney or agent merely." In Bellas 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 in Lessee of Clarke v. Courtney, supra, that "the law looks not to intent alone, but to the fact whether that intent has been executed in such manner as to possess a legal validity." 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 the in 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.1 . . .

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.

Edward D. Bassett and Frederic Hayes, for plaintiffs.
James G. Markland, for defendants.

1 A passage holding the stipulation a penalty is omitted. — ED.

SECTION III.

Negotiable Instruments.

LONG v. COLBURN.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1814.

[11 Mass. 97.]

ASSUMPSIT on the following promissory note, viz.: "No. 273, $301. Boston, 17th March, 1812. For value received, I promise to pay Mr. Edward J. Long, or order, on demand, three hundred and one dollars, with interest after four months. Pro William Gill, — J. S. Colburn."

The action came on for trial upon the general issue, at the last November term in this county, before PARKER, J.; when, it appearing in evidence that the defendant had a letter of attorney from William Gill, who was in Europe when the note was given, and when the action was commenced; and that the note was for a premium on a policy of insurance effected for Gill and on Gill's property; and the note being, in the opinion of the judge, signed by the defendant for Gill, a nonsuit was directed, with liberty to move the Court to set it aside; the defendant agreeing, in case the nonsuit should be set aside, to be defaulted.

Sullivan, for the plaintiff.

Crane, for the defendant.

PARKER, J., delivered the opinion of the Court.

In this case, Colburn, the defendant, is declared against upon a promissory note made by him; and when the note was offered in evidence to support the declaration, it appearing to be, as construed by the judge, a promise in behalf of William Gill, a nonsuit was directed, on the ground that the evidence offered did not support the declaration. If the note warranted a verdict against the defendant in the present action, the nonsuit must be set aside, and judgment be rendered for the plaintiff upon the default of the defendant.

But we are all very clear that the nonsuit was properly ordered; it being certain that a verdict could not have passed for the plaintiff upon this evidence, if the cause had gone on to trial. It appears upon the face of the note itself, that the present defendant was not to be considered as the promisor. He signed his own name, Pro William Gill; and the plaintiff's remedy is against Gill, if Colburn had authority to make the promise for him; and if he had not, a special action of the case might make Colburn answerable.

This authority may be by parol, by letter, by verbal directions, or may even be implied from certain relations proved to exist between the actual maker of the note and him for whom he undertakes to act; and

it may sometimes be inferred from the subsequent assent or ratification of the party who is charged by the writing. But in all cases, the name of the party intended to be charged must appear upon the instrument itself.

But in the case at bar, the evidence exhibited by the defendant, although unnecessary for the purpose of discharging himself, abundantly shows that he had authority to promise for Gill, and that Gill is accountable for the contents of this note.

The counsel for the plaintiff has ingeniously endeavored to construe this note into a promise of Colburn to pay this money for W. Gill. But the obvious and true construction of the instrument is a promise of Gill by Colburn, his agent or attorney. And, indeed, if the construction given by the plaintiff's counsel were correct, he could not recover in the present action; for he should have set forth that, Gill being indebted, Colburn, the defendant, for forbearance, or some other legal consideration, promised to pay. There is, however, no reason to suppose this the nature of the transaction; and there seems to be no difficulty in the plaintiff's pursuing his proper remedy against Gill. The nonsuit must remain. Costs for the defendant.1

LEADBITTER v. FARROW.

KING'S BENCH. 1816.

[5 M. & S. 345.]

ASSUMPSIT upon a bill of exchange and the money counts. Plea, non-assumpsit. At the trial before Lord Ellenborough, C. J., at the London Sittings after last Hilary term, there was a verdict for the plaintiff, damages £50, subject to the opinion of the Court upon the following case:

The plaintiff and defendant, at the time of drawing the bill in question, resided at Hexham. The defendant, who was a tanner, was also agent of the Durham bank, in which capacity he acted from July, 1812, to July, 1815, when the bank failed. On the 8th of June, 1815, the plaintiff sent £50 to the house of the defendant, in order to procure

1 Acc.: Rice v. Gove, 22 Pick. 158 (1839); Alexander v. Sizer, L. R. 4 Ex. 102 (1869).

In 2 M. & G. 721, n. (a), the reporters, commenting upon the signature “Robert Blundell, by procuration of Thomas S. M. Stanley " (Blundell being the agent and Stanley the principal), say: "This is the ordinary commercial form of signing by procuration. It is incorrect, as, in strictness, the words used would import that Blundell was the drawer &c. of the bills through the procuration, interposition, or agency of Stanley. The proper mode of signing by procuration is, either to use the name of the principal only, or to sign, A. B. (the principal) by, or by the procuration of, C. D.' (the agent)."- ED.