
    THOMPSON vs. CHOTEAU & VALLE.
    Where A appears in the body of an agreement to be the contracting party, and his name is signed to it at the proper place “ A, by his agent C,” it is the contract of A, and C cannot be made liable upon it.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OF THE CASE.
    The plaintiff instituted in the St. Louis court of common picas, his actidn of assumpsit, The first count was on a special agreement,as appears by the declaration, to have been entered into by the parties. To this count there was a general demurrer : this demurrer the court sustained, and defendant below had judgment on the demurrer, the other counts having been withdrawn by plaintiff.
    The only question for this court to consider is whether the court below erred in sustaining the demurrer.
    Hudson for appellant.
    The counsel for the appellant contends that the judgment of the court below was erroneous, and relies on the following points and authorities as sufficient grounds for the reversal of the same.
    1. The declaration sets out an agreement which contains a promise on the part of defendants, to pay for the corn which might be shipped to them by the plaintiff, and charges that corn was shipped, and that they agreed to pay, &c. These facts are admitted by the demurrer. But it is insisted that defendants acted as agents for Shiif, and are not personally liable. This ground is not tenable. It is well settled (hat an agent acting for a foreign principal will be liable personally far goods, &c., purchased for his principal. Smith’s Mercantile Law, 145.
    2. It does not appear from the declaration whether Sliiff was a resident o-r foreign merchant, nor was it necessary that the declaration should charge that he was a foreign merchant. That was a fact to be ascertained on the trial of the cause. If he was a foreign merchant, or irresponsible, the plaintiff would have been entitled to recover against defendants for the amount of corn shipped by plaintiff to them. Smith’s Mercantile law edition of 1847, page 145.
    3 The agreement on its face shows, that notwithstanding the corn was purchased for Stuff, that the defendants agreed to pay for it, and to secure themselves against loss, it was stipulated that the com should be shipped to them. This agreement was drawn and signed by the defendants, and they are bound by the stipulations therein contained. Ib. 147; 13 J. K. 310; 7 Cowan, 453.
    4. The court below erred in sustaining the demurrer; for it is well 'settled that if the credit ■was given to the defendant they would be personally liable, even though they acted as agents, and the question to whom credit was given, was one which should have been left to the jury on the trial. Smith’s Mer.- Law, 146.
    5. The law seems to be well settled, that in actions to make agents personally liable, the question to whom the credit was given is proper to be considered, and one which should be determined upon the evidence at the trial.
    6. The court below, by sustaining the demurrer to the declaration, 'deprived the plaintiff of the right to show the liability of defendants under any circumstances or state of facts.
    7. Ordinarily if the contract is úiade so as directly to bind the principal, (he agent will not be personally bound; but the question still remains whether the form of the instrument does or does not import a personal liability on the part of the agent? In the agreement declared on there is an express understanding on the part of defendants to pay for the corn, and they are personally liable. Story on Agency, ed. of 1839, 146,149, 259, 276; 2 Kent. Com. ed.of 1832, page 631.
    8 In most cases of purchases and sales of goods, through the instrumentality of agents, the great question 'is, to whom credit was given. Whether to the principal alone, or to the agent alone, or to both. Story; 261.
    9. If an agent should purchase goods for his principal, and by any memorandum in writing agree to pay forth'em, the agent will be personally liable. In the case now under consider ation, it appears that defendants bought the corn for Shiif, and agreed to pay a stipulated price for it, and oigned an agreement to this effect. They should not be permitted to avoid this understanding by setting up that they acted as agents. Story on Agency, 266.
    10. Agents acting for residents abroad are held personally liable on all contracts made by them for their principals, and this without any distinction whether they describe themselves as agents or not. In such cases it is presumed that the credit was given to the agent. Story 265, 266.
    Spalding for appellee.
    1. The instrument is between only two parties, Shiff, by Choteau & Yalle, his agents, on one side, and Thompson on the other ; and it is thus signed.
    
      2. It so reads on its face. The agreement to deliver by Thompson is to Skiff, not to Choteau & Valle.
    3. The agreement to pay is by Skiff on the face and by the words of the instruí)lent, for the statement is, that “Shiff agrees to receive not exceeding 12,500 bushels of corn, and to pay therefor at the rate of 40 cents per Bushel, &c.”
    4. In the after part of the agreement when a place is designated for delivery and payment, it is stated that the corn is to be delivered at St, Louis to Choteau & Yalle, end payment to be made by them. But this is not a personal engagement by them to pay at all events. This phrase is not to be wrested from the context and made to mean what it would mean in a contract signed by them in their own names as principals.
    5. This article is written below' another between Shiff and Thompson, and refers to the other, and states that it supersedes and cancels the other, which it would not do unless it were Shiff’s contract. Thompson accepts the latter as Skiff’s and adopts its statements, and on this demurrer is to be held to them.
    6. The only foundation, as it seems to me, for the pretence of the personal liability of Choteau & Yalle, is in the omission in the article to say that they would pay as agents of Shiff; but such an ommission in a short memorandum cannot alter the whole nature of the agreement. The context, the former agreement, which is also a part of the declaration and signatures, render it certain that Choteau & Yalle were acting only as agents.
    Story on Agency, p. 62, 63, 64, 65, 66, 69, as to construction of agreements.
    Ibid, p. 146-7, sec 155, 156, 157, 161, as to liabilities.
    Ibid, 261, sect. 263, that agent acting in name of principal is not bound.
    Ibid, p. 266, sect. 269, where agent would be liable as contracting in his own name.
    
    Ibid, p. 276, sect, 275, leases are mentioned where it was disputed whether agent contracted in his own name and was bound or not; and page 143, sect. 154, many instances are given where contracts do not bind agents, though contracts so made as to be subject to doubt.
   Judge Napton

delivered the opinion of the court.

The special agreement upon which this action of assumpsit is based, was executed by the parties in discharge of a previous agreement signed by “J. T. V. Thompson and A. Shiff for Jacob M. Ober.” The substitute agreement relates to the same subject matter, and is signed by “A. Shiff, by his agents Ohoteau & Yalle and J. T. Y. Thompson.” In this last agreement Thompson “agrees to furnish not exceeding 12,500 bushels of good merchantable corn to said Shiff, to be paid for at the rate of 40 cents per bushel of 56 pounds, and the said Shiff also, in full of the written contract, agrees to receive not exceeding the said 12,500 bushels of corn, and to pay therefor at the rate of 40 cents per bushel, clear of all charges, payment to be made at St. Louis, by Choteau & Valle, and the corn -to be shipped to Choteau & Valle, at St. Louis, by said Thompson, within the ensuing month, tobe at Shiff’s risk and expense when on board the steamboat. The declaration avers the delivery of the corn, and that by the agreement the defendants, Choteau & Valle, were bound to pay the six thousand dollars. The only question for our determination is, whether the contract, as set out, bound the defendants.

The general principles which regulate the liabilities of principal and agent are not disputed. Where the agent acts in the name of his principal the agent is not liable. Patterson vs. Guad, 15 East. 162. But this rule has its exceptions ; it does not apply when the principal is unknown to the party dealing with the agent; nor where there is no responsible principal to resort to; nor where the agent makes the undertaking his own.

The only question in this case is whether the agent has made the contract his own. The contract is set out in pace verba in the declaration, and no question in relation to the principal being a foreigner, or unknown, or irresponsible, are presented by the case. The written contract, alone is relied on.'

Can there be any doubt that Shiff, the principal, was bound by this contract? It is executed in his name, and signed by his agents for him in precisely that form directed by the law, when the agent intends to bind the principal. Spencer vs. Field, 10 Wend. 87. Thompson agrees to deliver the corn to Shiff, and Shiff agrees to pay for it at the rate of 40 cents per bushel. It is true that this payment is to be made at St. Louis, and by Choteau & Valle, but that seems to be a mere designation of the place and mode of payment. Choteau & Valle take care not to bind themselves to any thing. Their names are not to the instrument except as agents. It is Shiff’s contract to pay through Choteau ,& Valle; not the contract of Choteau & Valle. It does not appear upon the face of the writing that Choteau & Valle have made any contract with the plaintiff. They have merely executed a contract for Shiff, their principal, and executed it in the name of their principal, so as to bind him and not them. What facts may exist outside of the instrument of writing, which might subject them to responsibility, cannot be considered in this case. No such facts are alleged in the declaration. Judgment affirmed.  