
    NICOLL v. BURKE.
    
      N. Y. Court of Appeals;
    
    1879.
    [Reversing in part 45 Super. Ct. (J. & S.) 75.]
    Principal and Agent.—Lease.—Counterparts.—Duplicates.— Evidence.—Hew Agreement.
    If an agent possessing due authority makes a written contract not under seal, in his own name, the principal, although his name does not appear in it, may sue upon it.
      Such a contract is admissible in evidence under an allegation that plaintiffs, by an instrument made by their agents, contracted with defendant.
    Thus, where the landlord’s agents took from a tenant a written unsealed lease in their own names, adding the words “ agents, as landlords,”—Held, that the landlord might recover thereon.
    In an action on a lease not required to be in writing, but executed in counterparts or duplicates, it is sufficient for the plaintiff to produce the part signed by the defendant, and if the defendant gives no explanation as to the other, it may be presumed to have been duly executed, agreeably to the one produced.
    
    A provision in a written lease, that the tenant shall keep the premises in repair, merges prior verbal agreements in regard thereto, and renders evidence of the bad condition of the premises incompetent. A verbal agreement reducing, for the future, the rent specified in an unsqaled lease, is binding after payment of the reduced rent, and acceptance of it in full.
    
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment rendered in favor of the plaintiff, upon the verdict of a jury, and denying a motion for a new trial.
    Charlotte Ann Nicoll, Solomon Townsend, and Henry Nicoll, as executors of Solomon T. Nicoll, deceased, sued Edward Burke, for rent due upon a lease, and the renewals thereof.
    The lease was not under seal, and the counterpart signed by the tenant was introduced in evidence, the material portion of which is as follows :
    “ This agreement, between William and E. A. Cruikshank, agents, as landlords, and Edward Burke, as tenant, witnesseth, that the said landlords let unto the said tenant, and the said tenant hires from the said landlords, the premises now known as No. 19 State street, in the city of New York, for one year, to commence the first day of May, one thousand eight hundred and seventy-three, at the yearly rent of twenty-five hundred ($2,500) dollars, payable quarterly.
    “The said tenant farther agrees to pay the Croton water rate on said premises before the first day of August, in each year during said term, and to keep the plumbing work, pipes, glass, and the premises generally in good order and repair.”
    This lease was renewed several times. The renewal under which the rent now sued for accrued, was made by Edward Burke, the plaintiff’s agent, and was indorsed on the back of the lease. It is as follows :
    “ The within lease is hereby renewed for the further term of one year, to commence on the first day of May, 1876, at the yearly rent of two thousand four hundred ($2,400) dollars, other covenants and conditions to remain the same. “Edward Burke.
    “New York, March 2, 1876.”
    On the trial the defendant offered to show orally that a few days after this renewal was executed, the landlord agreed to repair the premises ; and he also offered to show the bad condition and state of the premises. The evidence was excluded.
    He was allowed to give testimony tending to show that in May, 1876, án oral agreement was made, reducing the rent thereafter to the rate of $2,200 ; and that the rent had been paid in accordance therewith ; and to prove this he introduced in evidence also the following receipts:
    
      “Received from Edward Burke, esq., five hundred and fifty dollars, in full payment of rent of No. 19 State street, for quarter beginning November 1, 1876, and ending February 1, 1877.
    “February 6, 1877. “Augs. Cbuikshauk,
    “68 Broadway, New York.”
    There was a precisely similar receipt of the same date, but for the “ quarter beginning August 1, 1876, and ending November 1, 1876.”
    A third receipt, dated November 10, 1876, was expressed to be for “five hundred and fifty dollars for one quarter’s rent of,” &c., “ up to August 1, 1876.”
    The trial judge charged that the subsequent agreement, if any, in regard to the reduction of the rent, was not based on any consideration, and that if the jury found for the plaintiff, they must find for the full amount, and he refused to charge “that the receipts showed that the rent was paid in full to February 1, 1877.
    The defendant duly excepted, and the jury found for the plaintiff for tiie amount claimed.
    
      The Superior Court at general term held that the plaintiff was entitled to recover upon the lease, and that the agreement reducing the rent was ineffectual (reported in 45 Super. Ct. [./. & S.~\ 75).
    From this decision the defendant appealed.
    Further facts sufficiently appear in the opinion.
    
      Nelson J. Waterbury, for defendant, appellant.
    I. The lease, being made by “William and E. A. Cruikshank, agents, as landlords,” cannot be sued upon by the plaintiffs. The word “agents” is merely descriptive and of no force. The words “as landlords” define the right of the Cruikshanks, and are controlling (Greenl. Ev. 12 ed. § 281, and cases cited; Kiersted v. Orange & Alex. R. R. Co., 69 N. Y. 343; Stone v. Wood, 7 Cow. 453; Guyon v. Lewis, 7 Wend. 
      26; Spencer v. Field, 10 Id, 88; Townsend v. Hubbard, 4 Hill, 351; Moss v. Livingston, 4 N. Y. 308; De Witt v. Walton, 9 Id. 571; Peck v. Mallams, 10 Id. 509, 521; Pumpelly v. Phelps, 40 Id. 59; Orchard v. Bininger, 51 Id. 652; Taft v. Brewster, 9 Johns. 334).
    II. It was error to exclude evidence of the bad condition of the premises. The premises being untenable, the tenant had a right to leave (L. 1860, c. 345, p. 592; Johnson v. Oppenheim, 55 N. Y. 280).
    III. The refusal to submit to the jury the question, whether there was a subsequent agreement to reduce the rent, was error. The mutuality of the agreement was a sufficient consideration to uphold it.
    
      Walter D. Edmonds (Edmonds & Nicoll), for the plaintiff, respondent.
    I. The Cruikshanks were duly authorized to act as the plaintiff’s agents (Newton v. Bronson, 13 N. Y. 587, 594; Bishop Contr. 1878, § 330).
    II. A written contract cannot be modified by a subsequent oral agreement, unless a new consideration is shown (Bishop Contr. 1878, §§ 647, 648).
    • III. The dilapidated condition of the premises was no defense (Luckrow v. Horgan, 58 N. Y. 635; Witty v. Matthews, 52 Id. 512; Suydam v. Jackson, 54 Id. 450).
    IY. The receipts were not conclusive (Ryan v. Ward, 48 N. Y. 204, 207; Bunge v. Koop, Id. 225).
    Y. An agent to let has no authority to discharge the lessee (Wilson v. Lester, 64 Barb. 431).
    YI. A written executory contract not under seal, made in the- name of the agent, may be sued on by the principal (Story Agency, § 160; Briggs v. Partridge, 64 N. Y. 357).,
    
      
       This case and Schaeffer v. Henkel, 7 Abb. New Cas. 1, and note, p. 12, explain fully the rules as to the right of action and liability of principals and agents on non-negotiable instruments. See also Abb. 
        
        Trial Ev. 298, 301, 360, 333, 509. For the exception made by many authorities in the case of negotiable paper, see Id. 402.
    
    
      
       As to the distinction between counterparts, strictly so called, and duplicates,—see Abb. Trial Ev. 523.
      For the somewhat analogous question as to the production of broker’s bought note and sold note,—see Id. 329.
    
    
      
       There is an essential, though sometimes slender distinction between this rule, which rests on the power of the parties to modify by parol an executory unsealed agreement, before time for performance, and the power after time for performance and default, to discharge a liquidated and undisputed indebtedness by payment and acceptance of a less sum in full without canceling or surrendering the instrument. Abb. Trial Ev. 314, 807.
    
    
      
       Affirming 35 Super. Ct. (3 J. & S) 440.
    
   Miller, J.

The plaintiffs in their complaint claim to recover for the rent of certain premises therein described, by virtue of a lease made by their agents, William and E. A. Cruikshank, for the term of one year, from May 1, 1876. We think that the written lease and indorsements on the same, signed by the defendant, of á renewal thereof from year to year, including the last year, to recover a portion of the rent for which this action was brought, was competent evidence to sustain the complaint. The lease purports to have been made by the lessors named therein, who are stated to be “ agents, as landlords,” with the defendant in 1873; and renewals from year to year, including the year 1876, are indorsed upon the same. The lease, as well as the indorsements, are signed by the defendant only, and are not under seal. There was evidently a counterpart to the instrument originally signed by the defendant, but it is not produced, and the proof does not show by whom it was signed, if it existed. It appears, however, that the Cruikshanks were agents of the testator who owned the premises ; that one Nicoll had charge of the property for the executors, in 1876; and that the last renewal of the lease was made under his direction by one Augustus Cruikshank, who was the successor of William and E. A. Cruikshank, who were named in the lease, as already stated.

The lease not being under seal, it was entirely competent evidence as a written parol executory contract, entered into by an agent in his own name, within his authority, although the name of the principal does not appear in the instrument.

The principle is well settled, that if the agent possesses due authority to make a written contract not under seal, and he makes it in his own name, whether he describes himself as agent or not, or whether the principal be known or unknown, his principal may be made liable and will be entitled to sue thereon in all cases, and the instrument may be resorted to for the purpose of ascertaining the terms of the agreement. This doctrine is fully sustained in Briggs v. Partridge (64 N. Y. 357, 362, 364), where the authorities bearing on the subject are cited and considered. (See also, Story Agency, § 160). A different rule prevails as to sealed instruments; but where the contract is in writing or by parol, not under seal, in the name of the agent and within his authority, the principal can enforce the same and is liable thereon.

The contract for the letting of the premises in question from year to year was not required to be in writing. The defendant understood that the agents were acting for others and were liable to the principals. The particular phraseology used in the lease describing the agents “as landlords,” does not change the rule or prevent its application to contracts not under seal. In fact, the counterpart of the lease not being produced, and it being no doubt in the defendant’s possession, and not appearing in what manner it was executed by the lessors, and the proofs showing that the plaintiffs were the landlords and entitled to the rents, it was reasonable to assume that it was executed by their agents for their benefit and on their account.

The cases cited by the learned counsel for the defendant to establish the doctrine that the lease, as it was, could only be enforced by the agents, do not sustain the principle contended for. Most of them relate to instruments under seal, and none of them hold that the principal cannot recover where the contract is made by the agent within his authority, either written or parol, when not under seal.

It is also insisted, that it was error to exclude the evidence offered as to the bad condition of the premises at the time the defendant surrendered them. The original lease was in writing, and it provided that the tenant should keep the premises generally in good order and repair. This was renewed in 1876, with the same covenants and conditions, except as to the amount of the rent. The writing merged all prior parol conversations, and there is no ground for claiming that the prior verbal arrangement was a part of the contract. The evidence offered was, therefore, properly excluded.

The first and second requests to charge covered too much ground and were properly refused. The third request, that the receipts showed that the rent was paid in full to February 1, 1877, should have been granted. The judge also erred in charging as a matter of law, that they should find for the plaintiffs the full amount of rent. The receipts showed, and there was a verbal agreement that the rent for the future should be reduced $200, and this was a modification of an executory parol contract which was Valid and lawful. Both parties acted under this arrangement, and it was executed and carried into effect. The defendant occupied the premises and the plaintiffs received the rent, according to the altered terms of the contract. We think this was obligatory. It is no answer to say that the receipt in full was not conclusive, or that the rent was not promptly paid, for the contract was executed.

For the errors referred to, the judgment must be reversed and a new trial granted, with costs to abide the event, unless the plaintiffs stipulate to deduct from the judgment $50, with interest from August 1, 1876, $50, with interest from November 1, 1876, $50, with interest from February 1, 1877 ; and $50, with interest from May 1, 1877; in which case judgment is affirmed, without costs of the appeal to either party in this court.

All the judges concurred except Folgker and Andrews, JJ., absent.

Judgment accordingly.  