
    J. G. Sencerbox, Plaintiff in Error, vs. Frank McGrade, Defendant in Error.
    ERROR TO THE DISTRICT COURT OR SCOTT COUNTY.
    When an agent or attorney contracts on behalf of hie principal, he must do so in the name of the principal, or the latter is not bound. When any one has authority to do an act, it should be done in the name of him who gives the authority; not in the name of the agent or attorney.
    Although amere receipt acknowledging payment of money maybe varied or contradicted by parol, yet where it contains an agreement, condition or stipulation between the parties, it is in the nature of a contract, and is not liable to be varied by parol. So where a bill of sale named the vendee as J. W. S., agent for J. Gt. S.,it was improper to admit parol proof that the sale was to J. G. S.
    When a party states that he “ was acting as agent for his brother,” in a certain transaction, non ° constat, but that he might have been so acting on his own assumption and'without any authority. Neither the declaration of a party, nor his acts, can be given in evidence to prove that he is the agent of another.
    Points and Authorities of Plaintiff in Error.
    • I. The bill of sale and receipt of purchase money, a copy of which appears in the case, (see folios 14, 15,) is not such a written contract as cannot be varied by parol, even had the action been between the parties to the bill or receipt.
    II. There is no rule of law which will preclude a party from showing the fact of ownership, of property as against a wrong doer, by parol or other evidence.
    III. The sale of the furs to Sencerbox, and payment of the purchase money, and the notice of that fact to Ferrier, the holder or bailee of the property, and the request of Sencerbox to Perrier to bold tbe property subject to bis order, and a delivery of that notice and request to Perrier by Burdick, tbe vendor, was a full and perfect delivery of tbe property to Sen-cerbox ; 1st, because there was nothing left for tbe vendor to do in tbe premises ; 2d, because tbe vendor parts with all control or right to control tbe property, and tbe right of Sen-cerbox to control tbe property, attached eo instanti upon the payment of tbe purchase money, as against Burdick, the vendor, and against all other persons except bona fide purchasers for a' valuable consideration, without notice; 3d, because, when Burdick, tbe vendor, delivered the notice to Perrier of tbe sale of bis entire interest in tbe furs to Sencerbox, then that was a delivery to tbe agent of Sencerbox for tbe use of Sencerbox, and consequently was a perfect delivery to Sen-cerbox.
    IV. There was no uncertainty in the transaction ; nothing remained to be done except to compute tbe number of tbe skins between Sencerbox and Perrier, as*partners, and to determine their respective grades by tbe market, which, it appears by tbe testimony of J. W. Sencerbox, was to be done by him. Burdick had nothing further to do in the premises.
    V. The title of property passes as between the parties when a sale for a valuable consideration is completed without either payment or delivery. Hobcm vs. Bidwell, 16 Ohio, Rep. 509. See also Willis vs. Willis, 6 Dana, Rep. 59, 60 ; Wing vs. Olci/rlc, 24 Maine Rep. 366; Olyphcmtvs. Ralcer, 5 Denio, 379.
    VI. If the sale was valid between the parties, it is valid against a judgment creditor; a judgment creditor is not a bona fide purchaser for a valuable consideration, because a judgment creditor comes in under, and not through, tbe judgment debtor. See 2d Minn. Rep. Greenleaf vs. Rdes, et al., 271, and cases there cited.
    Points ánd Authorities of Defendants in Error.
    I. — The Plaintiff failed to make title to the property for the recovery of the value of which he brought this action.
    The bill of sale under which he claimed title was made to J. W. Sencerbox, and not to him. J. W. Sencerbox was the contracting party, and tbe addition of “ agent for J. G-. Sen-cei’box ” is only a description of tbe person — a fact stated and to be proved to identify J. "W. S. as tbe contracting party. That part of tbe contract relative to the delivery of • tbe property is “ nnto tbe said J. W. Seneerbox,” without tbe addition, and so. is tbe purpose of tbe delivery as stated in tbe writing. If tbe title ever passed from B urdicb, it passed to J. ‘W. and not to J. Gr. Seneerbox. This is very clear from tbe language of the writing, and tbe notice to Eerrier confirms it. 1 Oow. Tr. 75, 2 ed; 6 John. JR., 94; 7 Oow. JR.,.454; 10 Wend. JR., 87; 7 Mass. JR., 19; 20 Wend. JR., 251; 8 Mass. JR., 103.
    II.- — -Parol evidence was not admissible to change tbe parties to tbe contract, or its legal effect. It is not simply a receipt, but it is a receipt of money on a contract, the terms of which and parties to which are defined in it. Such contract is just as unchangeable in its terms, and just as independent of parol evidence, las if tbe same terms were reduced to tbe most-approved form and signed by tbe parties, and tbe receipt simply endorsed thereon.
    It matters not in what capacity J. W. S. was acting, or pretending to act, when be made the contract, or whose money be paid. Those tacts cannot change tbe contract as made from one party to another. Tbe intention of tbe contract, as well in regard to parties as to terms, must be determined by tbe names and language used in tbe writing, and a failure to meet tbe intention cannot be supplied by parol to change either tbe parties or terms. 1 Greenlf. JLv., seo. 275-76, (&o.j 11 Mass. JR. 27; 4 Hill JR. 104-7; 20 Wend. JR., 251.
    III. — Even though it be admissible to prove by parol that J. "W. S., in making such contract, was acting as agent for bis brother (Plaintiff), be fails to show that be, in fact, was such agent. He does not show that be ever derived any authority from Plaintiff to make any such contract for him. For aught that appears to tbe contrary in tbe evidence, bis acting as agent was a pretence — an assumption. It certainly does not appear affirmatively or positively, as it should, that the Plaintiff ever employed J. W. 8. to make such contract or authorized him to pay money on it. There does not appepa’ in tbe case any fact, either prior or subsequent to tbe contract, connecting tbe Plaintiff with tbe contract, in any manner binding bim to its terms, or vesting him with any rights under it. 2 Greenlf. Ev., see. 59-60, dee., Title “ Agency ”; Ram. Pr. and Agt., 312; 1 Gamp. P., 418; 1 Esp. Gas. 83.
    IY. — Tbe contract was executory. Tbe title to tbe property bad not passed at tbe time tbe Defendant took it. In fact it never passed.
    Tbe quantity was not known. The property bad never been seen by either tbe vendor or purchaser. An examination, assorting and connecting, was necessary to complete and execute tbe contract.
    Tbe qualities, and tbe quantity of each quality, were unknown, undetermined, and tbe contract could not be executed without an examination and assorting of qualities. That remained to be done.
    Tbe prices of tbe inferior grades were not fixed, nor were tbe means ot fixing them afforded by the contract. Those remained to be agreed upon. .
    Neither tbe property included, or intended to be included in tbe contract, or the amount to be paid for it, was identified or fixed by tbe contract, but remained for future action to determine both, before it could be executed.
    So long as any of these things, or any one of them, remained to be done, tbe contract was executory, and tbe title remained in tbe vendor, whatever may have been tbe terms of it. Tbe statement in tbe contract that tbe vendor delivered tbe property, does not constitute a delivery, or change tbe title. Tbe facts show that there was not, in fact, a delivery, — that there could not be; for even tbe identity of tbe property was unknown to either of tbe parties. 1 Cow. Tr. 50, 2 ed.; 15 John. P., 349; 3 Mason P., 112; 15 Wend. P. 221; 7 Gow. P. 85; 5 Gow. P., 250; 2 Kent Com., 495-96, 3d ed.; 2 Com. P. 256; 5 JDenio P., 379; 2 HillP., 137.
    L. M. BeowN, Counsel for Appellant.
    A. G-. Chatfield, Counsel for Respondent.
   By the Court

Atwateb, J.

— The Plaintiff in Error brought suit to recover the value of certain furs, of wbicb he claimed to be owner on the 3d day of May, 1861, alleging the same to have been wrongfully taken by the Defendant, and converted to his own use. The answer denied the ownership of the Plaintiff, alleging the property belonged to one Burdick, and justified the taking under an execution against Burdick. A jury trial was waived, and the cause tried by the Court, and judgment rendered for the Defendant. The Plaintiff’ brings the cause to this Court by writ of error.

No evidence was introduced on the part of. the Defendant, the motion for judgment having been made on the pleadings, and evidence introduced by the Plaintiff. That evidence was-brief, as stated in the paper book, and the material x>art as follows :

“ The Plaintiff produced Jarvis W. Sencerbox as a witness on behalf of said Plaintiff, who, being duly sworn, testified as follows, to-wit: The Plaintiff is my brother ; I xourcliased of Burdick the undivided half of the furs in Mr. Perrier’s possession on the 3d day of May, 1861; exhibited bill of sale, of which the following is a copy ;
‘Received, Shako]3ee, May 3, 1861, from J. ~W. Sencerbox, agent for J. Gr. Sencerbox, of the city of Brooklyn, in the State of New York, the sum of fifty dollars on account of furs now in the possession of James Perrier, the undivided half of which I have this day sold to the said J. W. Sencer-box, agent for the said J. Gr. Sencerbox, at the following prices, viz.: No. 1 mink, one 50-100 dollars ; No. 1 Otter, four dollars ; muskrat, twelve cents; red fox, one dollar 25-100 ; prairie wolf, seventy-five cents; coon, fifty cents; inferior grades at proportionate rates ; and in consideration of the payment as aforesaid, I have delivered unto the said J. "W. Sen-cerbox the undivided half of said furs, now in x>ossession of said Perrier, to take possession of or disp>ose of as he, the said J. W. Sencerbox, may desire. Y. H. BuRDíoic.’ ”

The witness was then asked this question : “ In what capacity were you acting in jturchasing the property?” which was objected to on the ground that it tended to vary and change the written contract. The objection was overruled, and the witness answered, “ I was acting as agent for my brother.”

The witness was also asked, “ with whose money the payment was made?” which was also objected to by Defendant, the objection overruled, and the witness answered, “I paid him a certificate of deposit on the Bank of Commonwealth, sent me by my brother; it was my brother’s money. I sent a written notice to Mr.' Ferrier by Mr. Burdick, on the day that I made the purchase., I know that Mr. Ferrier received the notice.” Notice produced and read in evidence as follows :•

Shaeopee, May 8, 1861.
“ Mr. James íerrier : Please retain in your possession the undivided half of the furs this day sold me by Y. H. Bur-dick, until otherwise directed by me. Yours truly,
“ J. W. SeNCBRBOx.” •

'On cross examination the witness testified : I never saw the property myself. I took Mr. Burdick’s word for the property. I had no personal knowledge that he had any such property; I understood that the property was at Louisville about six miles from here. It was not ascertained at the time how many of number one, or oí a lower grade of fur there was at the time of the sale. I did not know how many mink skins there was at all. It had got to be ascertained after-wards how much of the' $50 was to apply on the mink ’ skins, but I expected there would be more than $50 worth. There were no prairie wolf skins at all. I did not know how many coon skins there were at the time. There was no understanding between Mr. Burdick and myself as to the price of the inferior grades of fur, further than that stated in the bill of sale. The number and quantity had got to be ascertained af-terwards. I supposed there was more fur, and Mr. Burdick said he supposed there was more at the time of sale.”

There was some further testimony, but not materially changing the above, and no other as to the person to whom the sale was made, or as to the agency of J. W. Sencerbox.

It will be observed, that J. W. Sencerbox testifies in the first instance that he purchased the furs of Burdick. The bill of sale also introduced in evidence, by the plaintiff, shows that the furs were sold to J. W. Sencerbox, and delivered to him so far as any delivery is shown. It is true he is designated as agent for J. G. Sencerbox,” but this must be regarded as desorvptio persones, as the terms of the instrument are direct and positive that the sale was made to J. W. Sencerbox. "When an agent or attorney contracts on behalf of his principal, he must do so in the name of the principal, or the latter is not bound. When any one has authority to do an act, it should be done in the name of him who gives the authority, not in the name of the agent or attorney. 7 Cow., 453, 9 Cow. 76, 7; 10 Wend. R., 87; 20 Wend. 251; 24 Wend. 345; 7 Mass. 19, 8 id. 103; 6 Hill, 240.

With reference to the instrument in writing signed by Burdick, which was introduced by the plaintiff in evidence, I do not think it was competent for the plaintiff to contradict or vary it by parol. It is obviously more than a simple receipt, and is more analogous to a contract of sale. It contains the names of the parties to the contract, the terms and conditions of sale, and attempts to make or show a delivery of the property. And though a mere receipt acknowledging payment of money may be varied or contradicted by parol, yet where it contains an agreement, condition or stipulation between the parties, it is in the nature of a contract, and is not liable to be varied by parol. 3 Cow. and Hill’s notes to Phil. on Sv. 383; 4 id. 582, and cases cited. At all events, the plaintiff must take the instrument as a whole, if at all, and cannot claim the benefit of apart, and reject such parts as he thinks prejudicial to his case. With the instrument remaining in evidence, it was improper to admit parol proof to show that the sale was to J. G. Sencerbox, the plaintiff, instead of to his brother. It will also be observed in connection with the consideration of the point, as to whom the furs were sold, (as disclosed by the written evidence,) that the notice served on Eerrier, by J. W. Sencerbox, speaks of the furs as “ this day sold me” by Burdick, without any reference to his capacity as agent.

But there is still another objection to the plaintiff’s right of action, even though all the evidence had been properly received. The plaintiff entirely fails to show that J. W. Sencerbox was in fact Ms agent in the purchase of these furs. All the testimony tending to prove such fact is in the answer to the two questions above cited, and taken under objection. Sencerbox testified that in making the purchase he acted as agent for his brother. Butpieither the declarations of a man nor his acts can be given in evidence to prove that he is the agent of another. 3 Cow. and Hill's notes to Phil, on Ev. 412, and cases cited. But the witness does not even state that he was actually the agent of J. G-. Sencerbox, ñor that he was ever employed by him, for the purpose of purchasing furs, for any other purpose, nor that he was furnished with money for such purpose. lie merely states that he was acting as agent tor his brother,” but non' constat, that he might have been so acting on his own assumption, and without any authority. So far as the testimony appears, there is no privity of contract between the plaintiff and Burdick, nor any right of action on the part of either as against the other, for breach of contract. No original authority from plaintiff is shown to his brother, nor any ratification of his acts, unless bringing suit be considered such, and no authority whatever is shown from plaintiff for commencing the action. We think the plaintiff fails in making title to the [property which is the subject of the action. This view of the case renders it unnecessary to examine the other points raised on the argument. The judgment below is affirmed.  