1 Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451. ALBANY & RENSSELAER CO. v. LUNDBERG. [Reported in 121 U. S., 451; rev'g 32 Fed. Rep., 501.] 1. Under N. Y. Code Civ. Pro., § 449-allowing a trustee of an express trust to sue in his own name-one who made a contract in his own name, but described himself therein as agent of a third person, may sue thereon in his own name; and this rule is applicable to a suit in a court of the United States within such state. 2. If the agreement is interpreted as having been made by the signer personally, then the price is payable to him personally; if as having been made as agent for another, then the price is payable to him as trustee of an express trust. etc. Action by seller against buyer for refusing to accept and pay, The allegations of the complaint were: I. For a first cause of action. 1. The plaintiff is not a citizen of the United States, but is an alien and subject of the kingdom of Sweden and Norway, and resides in Boston in the State of Massachusetts. 2. The defendant is a corporation duly created and existing under the laws of the State of New York, and is a citizen 2 thereof and of the United States, and has an office for the transaction of business in the southern district aforesaid, to wit, in the city of New York. 3. On the 10th day of February, 1880, the plaintiff, by an instrument in writing, duly signed by him and by the defendant, agreed to sell to the defendant, and the defendant agreed to purchase from the plaintiff, certain goods, wares and merchandise described in said contract, which, at the prices then and there agreed upon by and between the parties, amounted, in the 3 aggregate, to the sum of twenty-three thousand nine hundred and twenty-two 34-100 dollars ($23,922.34), and which amount the defendant then and there agreed to pay, according to the terms of said contract, all of which will, by reference to the said agreement, a copy of which, marked "A," is hereto annexed and made part of this complaint, more fully and at large appear. Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451. 5 4. Thereafter and on the 9th day of June, 1880, the plaintiff 4 delivered to the defendant, in fulfillment of the contract aforesaid, marked “A," four hundred and ninety-eight tons seven hundred weight two quarters and sixteen pounds of Swedish charcoal gray pig iron, of the brand N B G P H, on the wharf in the city of New York, duty paid. The said iron had been shipped from Sweden in May, 1880, which was as early a time of shipment as the plaintiff was able to ship that amount and quality and brand of iron. The defendant received the same without objection, on the ground that the amount thereof was slightly less than the amount of five hundred tons mentioned in said contract, and caused the same to be transported to Troy, in New York, and examined the same there, and then and there refused to accept or pay for the same, on the ground that the same was not of the quality and description called for by said contract. Upon the said delivery of said goods plaintiff duly rendered his bill for the same and demanded that the defendant should pay for the same thirty days after the delivery aforesaid, which bill the defendant refused to pay. The interest on the amount of said contract paid from July 9, 1880, to August 24, 6 1881, amounts to the sum of one thousand six hundred and fourteen 79-100 dollars ($1,614.79). 5. The plaintiff, upon such refusal, duly notified the defendant that he would proceed to sell the said iron on account of the defendant, and would hold the defendant responsible for any loss arising upon the said resale. After the said refusal and notice, and at various times during the year 1881 and down to and including August 24, 1881, the plaintiff, in good faith and with due diligence, sold the said goods for the account of the defendant for the best price that could then and there be obtained-to wit, the sum of sixteen thousand five hundred and eighty-one 71-100 dollars ($16,581.71), amounting, together with interest on sales from dates thereof to August 24, 1881, to the sum of sixteen thousand six hundred and seven 58-100 [dollars] ($16,607.58), leaving a balance due to the plaintiff from the defendant of eight thousand nine hundred and thirty 15-100 dollars ($8,930.15), no part of which has been paid to the plaintiff. 7 Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451. 8 6. The plaintiff paid, laid out and expended for the defendant on such resale as and for the necessary and reasonable expenses upon the same, the sum of one thousand eight hundred and seventy-four 9-100 dollars ($1,874.09), as will more fully appear from the account thereof, annexed hereto and marked "C," by reason whereof the defendant became justly indebted unto the plaintiff in said sum in addition to the balance aforesaid, amounting together to the sum of ten thousand eight hundred and four 24-100 dollars ($10,804.24), no part of which has been paid to the plaintiff. 9 10 11 II. [For a second cause of action the complaint stated another contract which differed only in being for the sale and purchase of "300 tons of brands SBVE and NBBBK."] III. For a third cause of action. The plaintiff, to avoid unnecessary repetition, refers to and restates the allegations of the first and second causes of action herein before alleged, and makes them part of his statement of the third cause of action. After the plaintiff had demanded and been refused payment for the iron delivered to the defendant, as in the statement of said first and second causes of action is averred, and after the plaintiff had given notice to the defendant that he would proceed to sell the same for the account of the defendant, the defendant refused to give up the said iron, except on the payment by the plaintiff of six hundred and twenty-two 67-100 dollars ($622.67), the amount of the freight from New York to Troy, paid by the defendant, and which amount defendant demanded from plaintiff, although by the terms of the contract defendant was bound to pay said freight. Plaintiff thereupon, in order to obtain the said iron and make delivery thereof to the several purchasers upon such resale, was compelled to, and did on or about the 6th day of August, 1881, pay to the defendant the amount so demanded, which amount still remains due and owing from said defendant to said plaintiff; but the defendant, although thereto requested, has not paid the same, nor any part thereof. Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451. IV. [For a fourth cause of action, the complaint alleged 12 work, labor, and services performed in and about the sale.] 66 A. "Copy of Contract. [N. M. Hoglund's Sons & Co., Stockholm; Gustaf Lundberg, successor to Nils Mitander :) [38 Kilby street, Boston, February 10, 1880.] [Note. The foregoing three lines in brackets and the words below enclosed in brackets, did not appear in the exhibit annexed to the complaint; but did appear in the contract given in 13 evidence.] "I, Gustaf Lundberg, agent for N. M. Hoglund's Sons & Co., of Stockholm, agree to sell, and we, Albany and Rensselaer Iron & Steel Co., Troy, N. Y., agree to buy the following Swedish charcoal grey pig iron, viz: 500 tons of brand NBGPH, at a price [of] forty-eight ($48) dollars, American gold, per ton of 2,240 lbs., delivered on wharf [at] New York, duty paid: [said iron to be in accordance with an analysis furnished in Gustaf Lundberg's letter of 6th February]. Payment in gold in Boston [or] New York funds within 30 days from date of ship's entry at custom house. Shipment from Sweden [during the season], say May next, or sooner, if possible. The above quantity hereby contracted for to be subject to such reduction as may be necessitated by natural obstacles and unavoidable accidents. The seller not accountable for accidents or delays at Signed in duplicate. sea. "Accepted: GUSTAF LUNDBERG. 66 Accepted: ALBANY & RENSSELAER IRON & STEEL SELDEN E. MARVIN, Treasurer. " In the United States Circuit Court for the Southern District of New York, it appeared on the trial that defendant, in consequence of an analysis refused to accept and pay for the iron, and returned it to the plaintiff, who afterwards sold it for less than the contract price, and brought this action to recover the difference. The jury returned a verdict for the plaintiff on the first, second and third causes of action, but not on the fourth. 14 15 Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451. 16 Judgment was rendered for upwards of $15,000. 17 The defendant sued out this writ of error. The Supreme Court of the United States (while reversing the judgment and directing a new trial for error in receiving evidence), sustained the complaint. GRAY, J. [after recapitulating the facts]: The first question presented by the bill of exceptions, is, whether this action can be maintained in the name of Lundberg, or should have been brought in the name of his principals, N. M. Hoglund's Sons & Co. The paper upon which each of the contracts in suit is written has at its head, besides the name of that firm, the name of "Gustaf Lundberg, successor to Nils Mitander," followed by the street and number of his office in Boston. The contract itself begins with a promise by him in the first person singular, "I, Gustaf Lundberg, agent for N. M. Hoglund's Sons & Co. of Stockholm, agree to sell;" the description added to his name in this clause is the only mention of or reference to that firm in the contract; his promise is not expressed to be made by them as their agent, or in their behalf; and the agreement is 18 signed by him with his own name merely. 19 361; There are strong authorities for holding that a contract in such form as this is the personal contract of the agent, upon which he may sue, as well as be sued, in his own name, at common law. Kennedy v. Gouveia, 3 D. & R., 503; Parker v. Winlow, 7 E. & B., 942; Dutton v. Marsh, L. R., 6 Q. B., Buffum v. Chadwick, 8 Mass., 103; Packard v. Nye, 2 Met., 47. In Gad v. Houghton, 1 Ex. D., 357, the contract which was held not to bind the agent personally was expressed to be made "on account of the principals ;" and in Oelricks v. Ford, 23 How., 49, in which the contract, which was held to bind the principal, more nearly resembled that before us than in any other case in this court, the important element of a signature of the agent's name, without addition, was wanting. But it is unnecessary to express a definitive opinion upon the question in whose name, independently of any statute regulating the subject, this action should have been brought. The Code of Civil Procedure of the state of New York contains the following provision : |