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Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451.


“Sec. 449. Every action must be prosecuted in the name of 20 the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.”

Under this provision, the Court of Appeals of that state has held that an agent of a corporation, to whom, "as executive

21 agent of the company," a promise is made to pay money, is “a person with whom, or in whose name, a contract is made for the benefit of another,” and may therefore sue in his own name on the promise. Considerant v. Brisbane, 22 N. Y., 389.* The rule thus established is applicable to actions at law in the courts of the United States held within the state of New York Rev. Stat., § 914; Sawin v. Kenny, 93 U. S., 289; Weed Sewing Machine Co. v. Wicks, 3 Dillon, 261; United States v. Tracy, 8 Benedict, 1.

The case then stands thus: If the agreement to sell is an 22 agreement made by Lundberg personally, and not in his capacity of agent of the Swedish firm, the price is likewise payable to

* In Considerant v Brisbane, 22 N. Y., 389, it appeared that defendant subscribed for stock in a foreign corporation by signing a paper, whereby he promised to pay a certain specified sum to “Considerant, as executive agent of” the corporation. In an action brought in the name of C., upon the notes, -Held, 1. That the contract was between the defendant and the corporation; that C. had no beneficial interest in it, was not bound by it, and was not “the real party in interest.” 2. That he was “a trustee of an express trust,” within the meaning of Code Pro., $ 111 23 [Re-enacted in Code Civil Pro., § 449), and as such could maintain an action upon the notes in his own name. He was a person “in whose name a contract is made for the benefit of another."

In Nelson v. Eaton, 7 Abb. Pr., 305, plaintiff sued as trustee under a trust agreement, whereby defendant's promissory note had been placed in plaintiff's hands as collateral. The trust agreement gave the trustee power only to sell the note.-Held, on demurrer, that plaintiff did not have legal capacity to sue on the note as trustee of an express trust; that the express authority to sell the note excluded any presumption that he had a right to sue on it.

Pope v. Terre Haute Car & Mfg. Co., 107 N. Y., 61

24 him personally, and the action on the contract must be brought

in his name, even at common law. If, on the other hand, the agreement must be considered as made by Lundberg, not in his individual capacity, but only as agent and in behalf of the Swedish firm, and for their benefit, then the price is payable to him as their agent, and for their benefit, in the same sense in which an express promise to pay money to him as the agent of that firm would be a promise to pay him for their benefit, and

therefore, by the law of New York, which governs this case, an 25 action may be brought in his name. In either view, this action is rightly brought.

[The Court then discussed the merits and held that the judgment must be reversed for error in the rulings upon evidence.]

Judgment reversed, and case remanded to the Circuit Court, with directions to set aside the verdict and to order a new trial.

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New York Court of Appeals, 1887.

[Reported in 107 N., Y. 61; rev'g 34 Hun, 633.] 1. An executory contract for the sale of goods containing no provision as

to the time when delivery is to be made, is in legal effect an engage

ment on the part of the seller to deliver within a reasonable time.
2. A complaint for breach, by the buyer, of an executory contract of sale

in which no time for performance was specified should allege an offer
to deliver the goods within a reasonable time, and is fatally defective,
if there is no allegation as to when the contract was to be performed,

or of the plaintiff's performance in respect to time.
3. Such defect is not waived by failure to demur or answer, but may be

objected to on the trial.

1 Action by the sellers against the buyer in a contract for the sale of goods.

The complaint, omitting formal parts, was:

First. That at the times hereinafter mentioned these plaintiffs were, and now are, copartners in business, and doing business in the City of New York under the style and firm name of Thomas J. Pope & Brother.

Pope v. Terre Haute Car & Mfg. Co., 107 N. Y., 61.

Second. That said defendant is a corporation duly incor- 2 porated and organized under and by virtue of the laws of the State of Indiana.

Third. That heretofore and on or about the second day of February, 1880, at the City of New York, these plaintiffs sold to said defendant and said defendant purchased of these plaintiffs, three hundred (300) tons No. 1 Calder Iron, at and for the price and sum of twenty-nine dollars ($29) per ton cash, to be delivered in bond at New Orleans, Louisiana. Fourth. That said iron was and is Scotch iron, and has to be

3 imported from Scotland, and that said sale was made subject to the ocean risks.

That said sale was made through Millard & Combs, brokers, doing business as such in St. Louis. That defendant well knew that said Millard & Combs, were brokers, not merchants, and were selling said iron as brokers.

Fifth. That said defendant, knowing that said iron was for sale, made an offer for it, and these plaintiffs accepted said offer in the City of New York.

Sixth. That after the terms of said sale had been fixed, said 4 brokers made and signed a note or memorandum in writing of said sale usually known as a broker's “ bought and sold note” giving and containing all the material facts of said purchase and sale.

Seventh. That these plaintiffs duly ordered the shipment of said iron. That the same arrived safely in New Orleans, and was there placed in bond. That thereupon these plaintiffs notified said defendant, and tendered delivery of said iron, and demanded payment therefor according to the terms of said contract.

Eighth. That said defendant positively refused to receive. said iron or any part of it, and positively refused to pay for the same, or to perform its said agreement of purchase, or any part of it.

Ninth. That thereupon the plaintiffs duly notified said defendant that they should sell said iron for their account and risk, and specified the time and place of such sale.

That not having received any payment, or performance on the part of the defendant, plaintiffs did on or about the 26th day of


Pope v. Terre Haute Car & Mfg. Co., 107 N. Y., 61.

6 June, 1880, sell said iron for $15 per ton, in bond in New Orleans.

Tenth. That the total amount realized upon the re-sale of said iron was $4,500. That that was the full value, and the best price that could be obtained for said iron at that time. That the expense of moving, storing and protecting said iron, and for the re-sale of the same was $143,8%, which these plaintiffs were compelled to and did pay.

Eleventh. Plaintiffs further say that after crediting said defendant with the net proceeds of said iron, the said defendant 7

still remains indebted to them in the sum of four thousand six hundred and forty-nine 1800 dollars ($1,649.80).

WHEREFORE, by reason of the premises the plaintiffs demand judgment against said defendant for the said sum of four thousand six hundred and forty-nine $ dollars ($4,619 896), with

1900 interest thereon from the 26th day of June, 1880, and costs of this action.'





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The “ bought and sold” note put in evidence was:

Sale Memo.

“St. Louis, Febʼy 2d, 1880. “ Sold Terre Haute Car & M'f'g Co. for account Pope & Bros., 300 tons No. 1 Calder, at $29 cash, in bond, New Orleans, subject to ocean risks. "Accepted: T. H. C. & M'F'g Co.,

“By J. B. HAGER, Pt." In the Supreme Court, at the trial, the defendant's counsel moved to dismiss the complaint on the grounds (1) that it did not allege when the contract was to be performed, and (2) that it did not allege performance, or offer or tender of performance within the time.

The motion was denied, and judgment was entered upon a verdict for plaintiff.

The General Term affirmed the judgment.
The Court of Appeals reversed the judgment.

Andrews, J. [after reciting the grounds of defendant's motion]: The plaintiffs did not offer to amend the complaint,

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Pope v. Terre Haute Car & Mfg. Co., 107 N. Y., 61.

and no amendment was made at any stage of the trial. We think 10 the motion should have been granted. There is no allegation in the complaint as to the time within which the contract was to be performed by delivery of the iron, and no time is mentioned in the written contract. The law supplies tlie omitted term, and the contract in legal effect was an engagement on the part of the plaintiffs to deliver within a reasonable time. (Benjamin on Sales, 683, note and cases cited; 2 Pars. on Con., 535, and cases cited.) The promise of the plaintiffs to sell and deliver the iron, and of the defendants to receive and pay therefor, were

11 mutual and concurrent, and neither party can maintain an action against the other for a breach of the contract without proving performance on his part. It was, therefore, necessary, as matter of proof, that the plaintiff should show that he delivered, or offered to deliver, the iron within a reasonable time, for this was his contract, and whatever is essential to a cause of action must be averred. The principle is very clearly stated in Osborne v. Lawrence (9 Wend., 135), in which the court says: “ The time when a promise is to be performed is always material and must be stated according to the truth, and proved as stated, whether it 12 be upon the request of the plaintiff, or upon a particular day, or in a reasonable time.” The complaint alleges that the iron

” arrived in New Orleans, and that the plaintiffs notified the defendant and tendered delivery and demanded payment.

But there is no averment when the iron arrived, or was tendered, or when by the contract it was to be delivered, or that delivery was tendered within a reasonable time, nor is any fact stated from which it can be inferred that the plaintiffs in that respect had performed their contract. The allegation that the plaintiffs “ duly ordered the shipment,” does not answer their obligation. Their contract was to deliver in a reasonable time, and the undertaking and its peformance should have been alleged. The circumstance that they “ duly ordered the shipment,” or that the vessel was delayed by stress of weather, or similar facts, might have been relevant on the issue of performance. The difficulty is that the complaint does not show that the defendant was bound to accept or pay for the iron, because it neither sets out the plaintiffs' undertaking as to the time of delivery, or its per



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