
    ST. JOHN a. GRIFFITH.
    
      Supreme Court, First District; Special Term,
    
    October, 1855.
    CONTRACT BY AGENT.-UNDISCLOSED PRINCIPAL.
    Whether under the Code, an action at law, on a contract made by an agent in his own name, but in fact on behalf of an undisclosed principal, may be maintained by the principal. — Query ?
    Where there has been a performance on the part of such principal, accepted by the other contracting parly, the principal will be entitled in equity to a specific performance, notwithstanding that the agent contracted in his own name.
    Demurrer to complaint.
    This action was brought by Thomas P. St. John against William II. Griffith, William N. Brown, Samuel Moody, and Thomas Xetchum, to compel the specific performance of an agreement to give a chattel mortgage, alleged to have been entered into by Griffith and Brown with the plaintiff.
    The complaint stated that one Ancel St. John, brother of the plaintiff, entered into an agreement in his own name with the defendants Griffith and Brown, by which St. John sold to them a lease and fixtures of the Battery Hotel, — that in making this agreement Ancel St. John acted as the agent of his brother, the plaintiff, — that by the terms of the agreement a part of the purchase money was to remain unpaid, and Griffith and Brown were to give a chattel mortgage, as collateral security for the payment of such part, — that pursuant to the agreement, Ancel St. John procured for Griffith and Brown a lease conformable to the agreement, which they accepted in performance of it, — that they were put in possession of the leasehold premises, and the fixtures were delivered to them, — that the sum of $2,750, part of the purchase money of the lease and fixtures remained still unpaid. — that Griffith and Brown had refused to give a chattel mortgage as agreed upon — that since the making of the agreement, Griffith and Brown, with a view of defrauding the plaintiff, had made, endorsed and delivered to the other defendants, Moody and Ketchum, two promissory notes, — that Griffith and Brown had fraudulently confessed judgment to Moody and Ketchum upon the notes, — and that execution had been issued on this judgment, and levied on the property sold by the plaintiff to Griffith and Brown.
    Complaint then prayed that the judgment and execution might be set aside so far as the property sold by the plaintiff to Griffith and Brown was concerned, and that a specific performance of the agreement of Griffith and Brown to give a chattel mortgage, might be decreed.
    The defendant first moved to strike out certain portions of the complaint, including the allegation that Ancel St. John acted, in making the agreement, as the agent of the plaintiff. This motion was denied. (See 1 Ante, 39.)
    The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    
      Mr. Sanxay and Mr. Stevens for the defendants.
    I. The agreement appears upon its face to be entered into by Ancel St. John. Its words are, “ This agreement made by and between Ancel St. John, party of the first part, and William Griffith and William N. Brown parties of the other part;” and it is signed by Ancel St. John in his own name. It cannot by construction or interpretation, nor can it by parol proof, be shown to have been made on behalf of the plaintiff.
    II. No action will lie in the name of the principal, on a written contract made by his agent in his own name, although the defendants may have known the agent’s character. (The United States v. Parmalee, 1 Paine C. O. P., 252; Newcombe v. Clarke, 1 Den., 226; Turney v. Bedford Ins. Co., 8 Met-calf, 348; Harp v. Osgood, 2 Mill, 216; Dunlap s Daley’s Agency, 324, note,p. 324, note ; Evans v. Wills, 12 Wend., 324; Williams v. Christie, 10 How. Pr. It., 12.)
    
      
      J. V. Loomis, for the plaintiff.
    I. If the plaintiff was the actual owner of the property sold, and Ancel St. John acted in fact only as agent, then the action must be brought in the name of the plaintiff, not in the name of the agent. (Voor-hies’ Code, 81, § 111.) This was always the rule in equity, and is now adopted by the Code. (Wallace v. Easton, 5 Ilow. Pr. R., 99; Hallenbeek v. Yan Yalkenburgh, Lb., 281. Voor-hies’ Code, § 111, note.) And this action is in principle an equity proceeding. (1 Abbott’s Pr. R., 39.)
    II. Although a contract has been executed under seal by an agent whose authority was by parol only, yet, if the contract would have been good if executed without a seal, the seal may be disregarded, and the agreement will enure as a simple contract. (Lawrence v. Taylor, 5 Hill, 107.)
    III. The only legal consequence of non-disclosure of his principal by an agent is, that the agent will be held personally liable on the contract as well as the principal. Where goods are bought by an agent for an undisclosed principal, the latter when discovered is liable. (Beebe v. Boberts, 12 Wend., 413.) Or the principal may come forward in such case and sue the seller for a breach of warranty. (Duke of Norfolk v. Worthy, 1 Campb., 337; Edda v. Eeed, 3 lb., 338; Langstreth v. Tou-lin, 3 /Stark., N. P. C., 339; Stanton v. Camp, 4 Barb., 294.)
    IY. By demurring, the defendants admit the allegation that the plaintiff was principal and Ancel St. John his agent, and thus admit the cause of action.
   CleeKe, J.

It is unnecessary to consider what would be the force of the first objection taken on this demurrer, wTere the case before me an action at common law claiming damages for a breach of the contract. The question presented for consideration in the present case is not whether on the face of the contract, and relying on its express language alone for the true relation of the plaintiff and the defendants Griffith and Brown, these defendants would be liable to the plaintiff, but whether in this action, seeking the equitable interposition of the Court, the complaint discloses enough to show that independently of the contract, the defendants have recognized the plaintiff’ as a principal in whose behalf Ancel St. John acted, and that they have availed themselves of its benefit so as to preclude them, at least in equity, from disputing their liabilities to the plaintiff. The complaint shows that although the contract was made and signed in the name of Ancel St. John alone, instead of Thomas P. St. John, the plaintiff, and that the name of the latter does not appear at all in it, yet it is averred that it was made on behalf of the plaintiff, by Ancel St. John, as his agent, that by this contract a lease of the Battery Hotel was sold and transferred to defendants, Griffith and Brown, together with all the furniture and fixtures contained in the hotel, that the agent thereupon procured for them a lease in the terms specified in the contract, and that this was accepted by them as performance of it, that they wrere put in possession, that the furniture and fixtures were delivered to them, that they having promised by the contract to give a chattel mortgage on the furniture and fixtures as security for the payment of $2,750, part of the purchase money, Ancel St. John, as agent of the plaintiff, soon after he put the defendants in possession, demanded of them this mortgage, which they refused; but, on the contrary, for the purpose of defrauding the plaintiff, contrived with the other defendants, Moody and Ketchum, that a judgment should be recovered by the latter against them, for their own benefit, and in order that the furniture, &c., may not be made liable for their debts.

Although the complaint might have been drawn with more definiteness and certainty, it discloses enough to make the defendants Griffith and Brown liable. Were there no written contract at all, they would be liable in an action of this nature on the facts which it presents. There w’as not only apart performance of the contract by these defendants, but a whole performance of it by the plaintiff; and can they now, after enjoying its benefits, in answer to a demand addressed to the equity of this court, say, that they contracted with Ancel St. John, and although they have possessed themselves of the property of Thomas P. St. John, they are not to secure him in the payment of the money, which they promised to give for it. If ever there was a case entitled to the intervention of the equitable jurisdiction of the Court, it is a case of this kind.

As I have already said, were there no written agreement, a parol agreement under such circumstances would be enforced. In the language of an excellent elementary writer on this subject, I may say, “in exercising this authority (enforcing parol contracts under certain circumstances) the Court may at first appear to decide in opposition to the statute of frauds, but it is to be observed, that if one party to such an agreement permit the other to proceed in fulfilling his part of it upon the faith of deriving those advantages which he contemplated, and the former should be allowed afterwards to set up the statute, as the means of avoiding the completion on his part, and of committing an injury towards the latter, who had confided in him for his own benefit, it is obvious that the statute instead of being the means of preventing, might operate as an encouragement to fraud.” (Jeremy's Equity, 435.) The present is a much stronger case, for here was a written contract, in the name, to be sure, of the agent, but the acts stipulated to be done by the agent were afterwards accepted by the defendants, from the principal. He executed to them, or assigned to them, the lease, and delivered to them his furniture and fixtures.

The second objection is no less untenable. The complaint indeed seeks to have the judgment recovered by Moody and Ketchum set aside, but this is not as a distinct independent form of redress, but as relief subordinate and ancillary to the main purpose of the action, — namely, that Griffith and Brown may be compelled, according to their promise, to give the chattel mortgage clear of the fraudulent lien of the other defendants, on the furniture and fixtures.

Judgment for plaintiff, unless the defendants answer within ten days, and pay ten dollars costs.  