
    CHARLOTTE ANN NICOLL, et al., Executors, &c., Plaintiffs and Respondents, v. EDWARD BURKE, Defendant and Appellant.
    Before Van Vorst and Speir, JJ.
    
      Decided March 3, 1879.
    Landlokd and Tenant.—Agency.—Evidence.
    The plaintiffs, as executors, through their agents, leased certain premises to the defendant.
    The indenture of lease introduced in evidence, upon which the action was brought, was not under seal, and was signed by the lessee only, the defendant herein. The plaintiffs, said agents, were mentioned and described therein as landlords, with the word “Agents ” after their names. It appeared that the defendant understood that he made the engagement to lease, &c., with persons who were acting for others.—Held, that an agent can bind his principal by a farol contract entered into in his own (the agent’s) name, though the principal’s name does not appear in the instrument; and that in this case the plaintiffs were properly in court to enforce the agreement made by them, through their agent, with the defendant.
    
      Also held, that as the plaintiffs are shown to be the persons entitled to execute the lease and to the rent, it is to be presumed that the counterpart of the above indenture was properly executed on their behalf, it not having been introduced in evidence by the defendant, in whose possession it is presumed to be.
    This is an appeal from a judgment in favor of plaintiffs, entered upon a verdict of a jury, and also from an order denying a motion for a new trial made upon the minutes of Hon. John Sedgwick, the judge before whom the action was tried.
    The action was brought to recover three several balances of rent, in all amounting to $150, alleged to be due- for the three several quarters ending on August 1, and November 1, 1876, and on February 1, 1877 ; also, to recover $600 alleged to be due for .the quarter ending May 1, 1877, under and in pursuance of an indenture of lease alleged to have beeu made between the plaintiffs, by their agents. William and E. A. Cruikshank, and the defendant, dated March 2, 1876, for one year from May 1, 1876, at the yearly rent of $2,400.
    Also to recover damages for an alleged breach of covenant in omitting to pay $19.55, the Croton water tax, and omitting to keep the premises in good order and repair, amounting to $300.
    
      Kissam & Embury, attorneys, and Benjamin S. Kissam, of counsel, for appellants.
    
      Edmonds & Nicoll, attorneys, and Walter D. Edmonds, of counsel, for respondents.
   By the Court.—Van Vorst, J.

The defendant, on March 2, 1876, signed a writing, indorsed on the lease, under which he had held the premises several years, in these words: “The within lease is hereby renewed for the further term of one year, to commence on May 1, 1876, at the yearly rent of two thousand four hundred dollars, other covenants and conditions to remain as before.”

This is a formal and effective agreement, binding upon the defendant to take the premises for one year, at the rent mentioned, and subject to the covenants and conditions he was before under. The defendant has nob paid the full amount of the rent called for in the agreement. He claims, however, that there was a subsequent agreement by which the rent was reduced.

The verbal arrangement, claimed to have been after-wards made with De Lancy Mcoll, the plaintiff’s agent, to take a less sum, if it was proven, is wholly inoperative. Mcoll denies that he agreed to accept a less Sum, unless the rent was promptly paid, and he testifies it was not.

But whether he so agreed or not, it would not bind the principals, for the reason that it was made without authority, and was founded on no adequate consideration. But receipts were signed accepting a less sum in full as the rent fell due from time to time. The receipts were not signed by the principals, but by the agents. Under such circumstances, as no authority to accept a less sum was shown, the acts of the agents would not discharge the moneys still unpaid. But in any view, the acceptance of a smaller sum, when a greater is due, does not discharge the real indebtedness (Dederick v. Leman, 5 Johns. 333; Ryan v. Ward, 48 N. Y. 204).

The rule is, however, otherwise, where the amount of the indebtedness is in dispute, and a compromise is agreed upon (Bunge v. Koop, 48 N. Y. 228). There could be no dispute here, as the true amount of the rent was fixed by the writing of March 2, 1876.

When the lease of 1873, upon which the indorsement in 1876 was made, was offered in evidence, it was objected to by defendant’s counsel, on the ground that it was not made in the names of the. plaintiffs.

It was, however, received, and the defendants excepted.

The learned counsel for the defendant takes the point that the plaintiffs cannot maintain an action for the rest. He urges that William and E. A. Cruikshank are the landlords, as appears by the original lease, and that the word “agents,” which follows their names, is descriptive merely.

The lease in evidence is executed by the defendant only. By whom, the counterpart was executed does not appear. It may be that it was so executed as to obviate any objection of the nature of the one now considered. From the fact that it was not produced by the defendant, in whose possession it is presumed to be, it may be inferred that it was executed in a form to bind the plaintiffs. But however that may be, we have now to do with the indorsement made in March 2, 1876, signed by the defendant, which gives occasion to this action, and which in effect draws to itself the covenants and conditions of the old lease. There is evidence in the case that Cruikshank and De Lancy Mcoll, in their action, merely represented others. That seems to have been understood, and the engagement arising from the indorsement of March 2, 1876, must be construed to have been made with those legally entitled to let the premises, and to be enforced by them.

The defendant’s counsel has cited several cases to show that all contracts must be made in the name of the principal and not of the agent, and that when they are not so made, although the agent may be, the principal is not bound ; among which are Kiersted v. Orange & Alexandria R. R. Co. (69 N. Y. 343); Stone v. Wood (7 Cow. 453); Spencer v. Field (10 Wend. 88); Townsend v. Hubbard (4 Hill, 351); De Witt v. Walton (5 Seld. 571). But, as already observed, it does not appear in what manner, on the part of the lessors, the lease was executed. And as the plaintiffs are now shown to be the persons entitled to make the lease, and to the rents, we may presume it was well executed on their behalf.

But while it may be true that when an agent enters into a contract under seal in his own name, he does not bind his principal, by its terms, and the principal may be unable to enforce it in his own name, yet a principal may be charged where a written parol contract, entered into by an agent in Ms own name, witMn Ms authority, although the name of the principal does not appear in the instrument (Briggs v. Partridge, 64 N. Y. 357, 362).

The engagement for letting and hiring the premises in question for one year was not required to be in writing, and the defendant’s obligation was not under seal.

He, in fact, made the engagement with persons who, as he understood at the time, were acting for others. And we conclude that the principals, the real parties in interest, are properly in court, to enforce the defendant’s engagement, made with them through the agency of Cruikshank and Nicoll.

We discover no error in the refusal of the judge to charge as requested by the defendant’s counsel, nor to the charge as made.

The plaintiffs’ claim to allowance for any part of the repairs made by them, was rejected by the jury under the judge’s charge ; the defendant being held only for the rent in arrear, and the Croton Water tax.

The defendant was not justified in his attempt to surrender the premises by the terms of the original letting. Nor was such attempted surrender accepted by the plaintiffs. The effect of the verdict of the jury is only to impose upon the defendant the payment of rent according to Ms engagement, and nothing more, and in that we fail to see any injustice. The judgment and order denying a motion for a new trial, from which this appeal is taken, are affirmed, with costs.

Speir, J., concurred.  