
    THOMAS F. SIMPSON, Appellant, v. NEW YORK, WEST SHORE & BUFFALO R’Y. CO., Respondent.
    
      Seal—presumption from letter's L. S.—effect on right to prove that party to instrument was agent.— Contract—construction of.—Pleading—con. struction of on demurrer—Quantum meruit.—Promise to pay—when not implied from reguest to perform services.
    
    Where a pleading has attached to it a copy of an instrument, which it refers to and makes part of the pleading, and such copy has this testificandum clause, “have hereunto severally set their hands and seals,” and has what purports to be, copies of the signatures of those named in the instrument as the parties to it appended to it, with the letters L. S., set opposite to such signature, it must on demurrer, be assumed that the letters L. S. were there placed as indicating that in fact the parties properly affixed their respective seals.
    Where a seal is necessary to the validity of the instrument on which it is used, any inquiry as to the agency of a party thereto is absolutely forbidden. When, though used, it is not necessary to its validity, to justify proof that a party to it was an agent, it must appear from the instrument that it was made on behalf of the party claimed to be the principal, and it must be proved that such party derived benefits from and accepted and confirmed the instrument by acts on his part, in order to charge him as principal.
    In the case at bar, the contract purported to be between plaintiff and one De 0. Annexed to the contract was a guarantee by the railroad company, whose road was to be built under the contract, by which it guaranteed the payments agreed to be paid to the plaintiff by De 0., in said contract. A provision of said contract was “ that in case said railway company fails to perform the contract between it cmd De G. . . . De C. shall have the right to suspend or cancel this contract ” without any liability to plaintiff for damages. Held, 1. It appeared that De 0. did not sign as agent. 2. Even if there was an agency, the plaintiff had relied upon the agent’s promise and credit exclusive of a responsibility of the principal.
    
      Decided March 2, 1885.
    Where certain averments appear from the rest of the pleading to be unfounded as matter of law, they are to be disregarded, in the consideration of the pleading on demurrer thereto.
    Averments that the party complained of had failed to do and perform certain things, without it further appearing that those things were by agreement or otherwise to be by him done and performed, are insufficient, as allegations of breach of contract.
    A count on quantum meruit alleging only that a certain specified sum “ is a reasonable charge and compensation therefor,” is defective on demurrer.
    In the case at bar, upon a count for extra work, it appeared from the averments of the complaint and reference to a contract therein set forth, made between the plaintiff and De C., that the work claimed for was such extra work as the contract embraced. This contract provided that, no claims for extra work should be made or allowed, and that whenever work not contemplated or provided in the contract should be required to be done, it should be done only on the receipt of the written order of the chief engineer of the company, whose road was to be built under the contract, setting forth, &c. The complaint contained no averment that the chief engineer gave any written order. Held, that the averments of the complaint as to the work being done at the special instance and request of the company, only signified that the company specially requested that the plaintiff should do the work, and receive compensation therefor, under the contract, and implied no duty or promise on the part of the company to pay.
    Before Sedgwick, Ch. J., Text ax and Ingraham, JJ.
    Appeal by plaintiff from judgment that complaint be dismissed, entered on demurrer to complaint.
    ‘The complaint demanded judgment against defendant, on the ground that by certain consolidations, not necessary to be specified, the defendant was liable for the obligations of the Jersey City & Albany Railway Company, and it made averments as to the obligations of that company, which are set out in the opinion.
    
      Culver & Culver, attorneys and of counsel for appellant,
    upon the questions considered by the court, argued :— I. If an agent make a contract in his own name the party with whom it is made may sue the agent as principal, or if he elect to do so he may sue the real principal. He has his option to sue either, but he cannot sue both, for when he sues the principal he affirms the fact that the other was acting simply as an agent (Borell v. Newell, 3 Daly, 233 ; Nicoll v. Burke, 78 N. Y. 580). The learned judge at special term sustained the demurrer herein on the authority of Schaefer v. Henkel, 7 Abb. N. C. 1, and Briggs v. Partridge, 64 N. Y. 357 (Mem. Daily Register, November 20, 1883), and therefore upon the ground that the contract being under seal, plaintiff could not show De Clark to have been merely an agent, and was precluded from resorting to the defendant as a principal.
    The fact is, however, that the contract is not under seal. A printed form was used, at the end of which, the letters “LS” are twice printed, and which were reproduced in the lithographic copies served on defendant. No seal, however, was attached to the agreement at that place, or elsewhere. The court was probably misled by the letters “L S,” and inferred that there were seals at those places.
    . We are, therefore, not within this decision (Briggs v. Partridge, supra), but are distinctly within the law stated by Mr. Justice Andrews in that case, cited on page 362, to the effect, that a principal may be charged upon 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. Followed in Schaefer v. Henkel, 7 Abb. N. C. 1.
    Going further in the same case, Briggs v. Partridge, 64 N. Y. it is stated that there are cases which hold that when a sealed contract is executed in such form that it is in law the contract of the agent, and not of the principal, but the principal’s interest in the contract appears on the face, and he has received the benefit of the performance by the other party, and has ratified and confirmed it by acts in pais, and the contract is valid without seal, the principal may be resorted to upon the instrument (Du Bois v. Del. & Hud. Canal Co., 4 Wend. 285 ; Lawrence v. Taylor, 5 Hill, 107 ; Evans v. Wells, 22 Wend. 324 ; Worral v. Mun, 1 Selden, 229). (a.) This contract was plainly the company’s contract. (6.) De Clark received no benefit under it. (c.) The company, to show that the work was being done purely for it, went so far as to guarantee the payments due under the contract.
    II. The second cause of action states facts sufficient to constitute a cause of action. It is a claim for extra work “ done at the special instance, and request of the Jersey City and Albany Railway Company. ”
    
      Alexander & Green, attorneys, and Charles B. Alexander, of counsel for respondent,
    on the question considered by the court, argued :—I. This action cannot be maintained by Simpson against this defendant because it is brought on a sealed instrument to which this defendant is not a party (Schaefer v. Henkel, 7 Abb. N. C. 1; S. C., 75 N. Y. 378 ; Briggs v. Partridge, 64 N. Y. 465 ; Fenly v. Stewart, 5 Sand. 112 ; Hendrick v. Lindsay, 93 U. S. 143). The appellant notified the respondent on the 23d of February for the first time that they proposed to contend that the instrument on which suit was brought was not sealed. In the court below it was alleged to be sealed. The argument at special term was proceeded with on the theory that the instrument was under seal, and the counsel never questioned the fact in the court below. They cannot now meet us on the appeal with the suggestion that they served erroneous papers. This was not a paper which was ever in defendant’s possession. It is only upon the issue raised by the copies served that this case can be tried (Trowbridge v. Didier, 4 Duer, 448). A defect in copy is not cured by showing that the original was correct (Hughes v Wood, 5 Duer, 603, note ; Graham v. McCoun, 5 How. 353 ; Littlejohn v. Munn, 3 Paige, 379; Carey v. Hatch, 3 Edw. 190). The plaintiff also is estopped by his signature and the recital from claiming against a third party that the instrument is unsealed (Atlantic Dock Co. v. Leavitt, 54 N. Y. 38). The plaintiff, having taken the position that in his complaint the instrument is sealed, is bound by its averments (Meeker v. Wright, 76 N. Y. 272 ; Davis v. Mayor, 14 N. Y. 506). Both parties were residents of the State of New Jersey, and it is fair to presume they contracted there. The situs of a contract is the residence of the payee (Wharton's Confl. Laws, § 364; Godwin v. Holbrook, 4 Wend. 377 ; Guillander v. Howell, 35 N. Y. 657 ; Kirtland v. Hotchkiss, 100 U. S. 419). Under the law of that state a scroll is a good seal (N. J. Revision, p. 387, P. 875, p. 56). Thus, where the record shows an instrument to be sealed, the court will not hold it to be unsealed because the only evidence of sealing in the appeal book is the presence of revenue stamp opposite each name (Van Bokkelen v. Taylor, 62 N. Y. 108). The plaintiff also claims that the contract appears on its face to be the contract of the railroad company. This it expressly does not. The guaranty would in such case be an absurdity. The cases cited by plaintiff’s counsel do not sustain the principle as applied in this case. There is no averment of ratification or adoption. The plaintiff says this contract was plainly the companies’ contract. Plaintiff expressly pleads that it was not. The contract shows it was not, and the company was asked to guarantee it because it was not their contract. A guaranty necessarily implies the existence of a principal. Who is the principal, unless it be De Clark % (Chitty on Contracts, 11th ed. 738). Plaintiff having accepted the guaranty is estopped from claiming that the railway can be held as principal (Pickard v. Sears, 6 Adol. & Ell. 469 ; Cornish v. Abington, 4 H. & N. 549 ; Brookman v. Metcalf, 4 Rob. 563 ; Chapman v. O’Brien, 2 J. & S. 524).
    
      II. The plaintiff does not allege any facts entitling him to sue on the contract. Where the complaint has annexed a contract which does not raise a cause of action it fails (Weichsel v. Spear, 15 J. & S. 225), The complaint contains certain conclusions of law which are not admitted by this demurrer. These ponclusions of law are: First. That De Clark was not the party in interest. Second. That he was acting as principal therein. Such conclusions of law are not admitted by this demurrer (Sheridan v. Jackson, 72 N. Y. 170; Scofield v. Whitlegge, 49 N. Y. 259 ; Reiner v. Brandhorst, already cited).
    III. The demurrer to the second cause of action for insufficiency is well taken. It is clear that the work provided for and mentioned in the bill of particulars must of necessity and as matter of construction of law be included within the terms of the contract. ISTo agreement to pay is averred. The mere request to De Clark to make such a contract, even for the sole benefit of the defendant, cannot, as a conclusion of law, be considered as an agreement on the part of this defendant to make any payments on the contract or otherwise (Quackenboss v. Edgar, 34 Super. Ct. 333).
   Per Curiam.

The complaint averred that one De Clark entered into an agreement with the plaintiff. The agreement was made part of the complaint. It witnessed that the plaintiff as party of the first part, for and in consideration of the prices agreed to be paid by De Clark, the party of the second part, agreed to construct and in all respects complete the railway of the Jersey City & Albany Railway Company, in the manner provided in the contract and in specifications annexed to it. The testificandum clause was that the parties “have hereunto severalty set their hands and seals,” and the complaint shows that the parties did in fact set their seals severally to the contract. From this, it would appear that the plaintiff, for a violation of the contract, was confined to a remedy against De Clark, the person making the covenants. The seal forbids an inquiry as to whether De Clark in making the contract was agent for the defendant (Briggs v. Partridge, 64 N. Y. 357 ; Schaefer v. Henkel, 75 Ib. 378; Whitford v. Laidler, 94 Ib. 145). In reference to the suggestion that the contract would have had validity if not sealed, the remark of Judge Miller in Schaefer v. Henkel (supra), is apposite: “It is therefore settled law, that in order to take a case out of the general rule, where the contract is one which is valid without a seal and the seal is therefore of no account, it must appear that the contract was really made on behalf of the principal,” from the instrument, and —or as well as—that the party derived benefit from and accepted and confirmed it by acts on his part. The word principal is here used, perhaps to designate the third party charged as if he were principal, for probably the law on this point makes the contract that of the person who affixes the seal without any principal. Whitford v. Laidler (supra), is to the same effect.

So far from it appearing on the face of the contract, that De Clark signed as agent for a principal, that is, .the railway company, the contrary of it appears, if an addition to the contract and which appears on the face of the complaint, may be considered. It is, that in consideration of one dollar by the plaintiff paid to the railroad company it guaranteed the payments agreed to be paid to the plaintiff by said De Clark in the foregoing contract' A significant provision is, “that in case the. said railway company fails to perform the contract between said company and De Clark so that for any cause, the work is suspended or discontinued on the part of De Clark, then the said De Clark shall have a right to suspend or cancel this contract,” without a liability for damages to the plaintiff. The complaint plainly discloses that the railway company had contracted with De Clark to pay him for the building of the road, he contracting to build it, and De Clark had contracted with the plaintiff to pay for the building of the road, plaintiff contracting to build it, while the railway company guaranteed that De Clark would pay. The obligations of the company are confined to a performance of this guarantee. Upon this, they are not sued. Upon these facts, even if there were an agency, it appears that by force of contract, the plaintiff has relied upon the agent’s promise and credit exclusive of a responsibility of the principal.

The complaint goes on to aver that De Clark “ was not the party in interest in said agreement, and was acting as principal therein at the request of and solely for the Jersey City and Albany Railway Company.” These averments appear from the rest of the complaint to be unfounded, as matter of law. The action is upon the agreement, and as matter of law De Clark was the only party in interest, and the only party to sue or to be sued. Nor would his acting as principal, • at request of the railway company and for the company solely, forbid it being true that what he did made him liable and did not make the company liable on the contract.

Further, if De Clark had been the defendant, the complaint does not show that he was guilty of violation of the contract. The allegations would be that De Clark made .default in certain of the agreements on his part in said contract made, as more specifically set forth in items three to seven inclusive of the statement ahnexed to this complaint and marked B, to which said items in the words and figures therein set forth, plaintiff herewith refers, as a part of this complaint, for further and more specific allegations and as a bill of particulars of the default so made, and of the damages resulting to plaintiff thereby.” An examination of one of the so-called items will be enough. The others are not less defective. Item No. 5. By the railway company’s failure as per agreement to furnish flat cars in sufficient number so that the ballast unloaders could be used, it was made necessary to send the men who loaded the ballast into the pit, and then out with the train to shovel it off the cars.” There is no provision in the agreement that De Clark or the company should furnish flat cars in numbers sufficient to allow the using of ballast unloaders. The further statement is, Also by not furnishing the track-laying materials as per agreement, so that the track could be laid during the summer season, the ballasting had to be done during the winter season in frost and snow, by which the cost was fully doubled, making a damage of twenty cents per cubic yard on 24,680 cubic yards ballast.” An examination of this would show that for the supposed breach the damages as claimed were not recoverable under the agreement. It is enough, however, to say that no part of the agreement, in the absence of allegations as to facts aliunde, shows that the track-laying materials were to be furnished so that the track could be laid during the summer season. And of all the so-called items it must be said that they contain hints or intimations of the existence of certain facts, and not allegations that they exist.

The second cause of action is averred to be “that during the performance of the work by plaintiff under said contract, plaintiff did at the special instance and request of the said The Jersey City and Albany Railway Company, perform certain extra work and services additional to those agreed to be done in and by the aforesaid contract, which extra work and services are more particularly described and set forth in items numbers one and two of the statement annexed to this complaint and marked B, to which said items in the words and figures therein set forth, plaintiff herewith refers as a part of this complaint for further and more specific allegations, and as a bill of particulars of said extra work. That for the same there became due and payable from said company the sum of $2,101.36, which is a reasonable charge and compensation therefor.” This is defective in omitting to aver as a fact, what was the value of the work and services. The allegations as to reasonable charge and compensation, are matter of opinion and of law.

The mere fact that the failway company requested the plaintiff to perform work and services, apart from circumstances to show that the work was for the benefit of the company or to the detriment of the plaintiff, does not create an obligation to pay for them (Crane v. Baudouine, 55 N. Y. 261; 2 Saund. 137 h). It must be taken from the explicit averment that it was extra work, and from the reference to the contract that has already been considered, that the extra work was such extra work as the contract embraced. By the contract (subd. 13), “No claims for extra work shall be made and allowed.” The subsequent clause shows what the contract intends by the term extra work, “whenever work not contemplated or provided for in this contract shall be required to be done, it shall be commenced only upon receipt of the written order of the chief engineer setting forth the nature of the work and the compensation to be paid therefor,” etc. There is no averment that the chief engineer gave any order in writing for the work. And as it was done under the contract, the party liable for its value, if any one be hable, is De Clark, not the railway company. The averments as to the work being done at the special instance and request of the company signify that the company specially requested that plaintiff should do the extra work under the contract and receive com ■ pensation therefor under the contract. There would be implied no duty or promise on the part of the company to pay. The complaint does not allege that the company expressly promised to pay, and this makes it unnecessary to inquire if there was any consideration for such a promise.

Judgment affirmed, with costs.  