If this action had been prosecuted under the rules as to parties which prevailed before the Code of Procedure was enacted, the question would have been, whether the contract was made with the plaintiff, as the promisee, or with the corporation mentioned in the complaint, by the plaintiff, as its agent. If the plaintiff was considered the contracting party, the action could be maintained in his name, though the corporation were the party beneficially interested; the rule, in actions ex contractu, being, that the suit must be in the name of the party in whom the legal interest is vested, though the equitable interest should be in another person. The Code, though adopting, as a general rule, the practice prevailing in courts of equity, by which the parties having the beneficial interest were required to be brought before the court, made an exception in favor of the trustees of express trusts, and in favor of parties with whom and in whose name contracts were made for the benefit of other persons. Such contractors, in order to include them within the words of the exception, were to be considered trustees of express trusts. The question to be determined is, therefore, precisely the same which would have arisen if there had been no Code, namely, whether, in point of law, this contract was made by the defendant with Mr. Considerant, the plaintiff, or with the corporation named Bureau, Guillon, Godin Co.
In strictness of language, the promise is to the plaintiff. The defendant in terms promises to pay the money to him. But it is not a case in which the words which follow — "as executive agent of the company Bureau, Guillon, Godin Co." — can be taken as a descriptive addition to his name; for they are clearly inserted for no such purpose, but to denote the character in which he is to receive the money. It is to be paid to him as agent for a principal who is named. There is nothing on the face of the instrument, or in the averments of the complaint, to show that the plaintiff has any pecuniary interest in the performance of the agreement, or that he was under a *Page 399 mutual obligation to furnish the shares for which the sum promised was the price, or that any motive of interest or convenience existed for interposing a formal contracting party between the promisor and the party entitled to the thing promised. In such case my opinion is that the contract is generally deemed to be made with the person named as the real party in interest in the transaction.
The cases, in which a similar question has arisen, are numerous; but they are not quite in harmony with each other. In England, Pigott v. Thompson (3 Bos. Pull., 147), is often referred to. Commissioners were authorized, by act of Parliament, to lease the right to certain tolls. They made a lease to the defendant, who agreed in writing to pay £ 140 per annum to the treasurer of the commissioners, at his house in Ely. It was held that this was equivalent to a promise to pay to such person as the commissioners should choose to make their treasurer for the time being, and that the legal interest in the contract was in them, and not in the treasurer. Consequently, the action, which was in the name of Pigott, who was the treasurer, was defeated. In Gunn v. Cantine (10 John., 387), the plaintiff brought the action upon the following agreement, signed by the defendant: "Received of Daniel Gunn an article of agreement between Barent Stryker and Alexander Boyd, dated, c., assigned to Stephen Simmons, to collect the money therein contained." The action was brought by Gunn to recover a sum of money which the defendant had collected on the security mentioned. It was shown that the plaintiff was an agent of Simmons. It was held that the action could not be sustained; and Pigott v. Thompson was relied on as authority. The case is subject to the remark, that the promise to pay over the amount to the plaintiff was not express. InSafford v. Stevens (2 Wend., 158), the action was on a stipulation, which, after giving the title of a case in the Supreme Court, was in these words: "I hereby stipulate that I will pay to the attorney for the defendant the taxable costs in this suit now accrued." It was held that the agreement was not made with the attorney, *Page 400 but with the defendant, for whom he acted. This case was in the Court of Errors, and the opinion was by Chancellor WALWORTH.Buckbee v. Brown (21 Wend., 110), was an action of debt, brought by a wharfinger to recover tolls which an act of the legislature had directed to be paid to the wharfinger, though the beneficial interest in them was in the proprietors of the pier. The case was held to be within the principle of Pigott v.Thompson, and the defendant prevailed. Bayley v. TheOnondaga Mutual Insurance Company (6 Hill, 476), was brought on a bond given by one of the agents of the insurance company, with sureties, for the faithful performance of his duty as agent. The bond ran "to the directors of," c. — the title of the corporation, which was the plaintiff in the action. It was held that the plaintiff was entitled to recover. Chief Justice NELSON, who gave the opinion, seemed to put it, in the first place, upon the footing of a misnomer of the corporation in the bond, upon which it would stand well enough. But, then, he lays down this rule, which, if correct, is decisive of this case: "Where a contract purports on its face to have been made by or with an agent having no direct or beneficial interest in the transaction, the suit must be brought in the name of the principal, as the contract is, in legal effect, made with him." He cites, approvingly, the case of Pigott v. Thompson, and two cases decided in Massachusetts, to be immediately noticed. The first of these was Gilmore v. Pope (5 Mass., 491). It was an action brought on an instrument which, after reciting the formation of a turnpike corporation, proceeded as follows: "We, the subscribers, in consideration, c., hereby agree to take the number of shares set against our respective names severally, and to pay on demand to John Gilmore [the plaintiff], or order, all assessments that may, at any time, be made," c. The defendant had subscribed the instrument for ten shares. It was held that the action could not be sustained in the name of Gilmore, the plaintiff, who was an agent to procure subscriptions, but should have been brought in the name of the corporation. Chief Justice PARSONS, by whom the opinion was written, *Page 401 put the decision mainly on the ground that, considered as an agreement to pay the plaintiff, it was a nudum pactum. TheTaunton and South Boston Turnpike Company v. Whiting (10 Mass., 327), the other case referred to by Chief Justice NELSON, was brought on a subscription similar to the one in the last case, payable to the same John Gilmore, and the action was in the name of the corporation, which had accepted and recognized the instrument and had issued stock to the defendant. The judgment was in favor of the plaintiff. If these cases stood alone, the question would appear to be pretty well settled in favor of the defendant by judicial authority; but there are several cases of a contrary tendency. (Anderson v. Martindale, 1 East., 497;Harp v. Osgood, 2 Hill, 216; Davis v. Garr, 2 Seld., 124;Fisher v. Ellis, 3 Pick., 322; Fairfield v. Adams, 16 id., 381; Buffum v. Chadwick, 8 Mass., 103.) But, in TheCommercial Bank v. French (21 Pick., 486), which was on a note by which the defendant promised to pay the cashier of the plaintiff's bank a certain sum, it was held that the action was well brought in the name of the corporation. It was admitted that the Massachusetts cases on this point clashed; but it was suggested that they might be reconciled by holding that the promise was legally made to the agent, where his name as well as situation was mentioned. This distinction, it is apparent from the cases, would not reconcile those in this State with those which have been cited from the Massachusetts court. The question is discussed, and some additional cases commented on, in Story's Treatise on Agency, section 395 and the notes. Without undertaking to lay down a principle which will determine all cases of this kind, I think it may safely be stated, that where it appears that the duty which the instrument acknowledges is due to a corporation whose agent or officer is by the contract appointed to receive the thing promised, and nothing appears to show that he has any interest apart from his principal, or that there was any motive for interposing the agent as a contracting party between the promisors and the party equitably entitled, it ought to be held that the promise *Page 402 was made to the latter. That rule, applied to this case, would lead to the affirmance of the judgment appealed from.
COMSTOCK, Ch. J., and BACON, J., concurred in this opinion.
Judgment at general term reversed, and that at special term affirmed.