(concurring): I concur in the result upon the opinion of the referee.
The following is the opinion of William N. Cohen, Esq., Referee :
Cohen, Referee:
' On the 19th day of November, 1888, one McNulta entered into an agreement in writing and, under seal with one Pardee, whereby McNulta in consideration of the sum of thirty-two thousand 'five hundred dollars ($32,500), agreed to sell eight hundred (800) shares of stock of the San 'Francisco, Clear Lake and Humboldt Railroad *471Company, and two thousand (2,000) shares of stock of the Clear Lake Improvement Company.
The agreement acknowledged the receipt by McNulta of the sum •of fourteen thousand one hundred dollars ($14,100), and recited the sale and delivery of the said shares to Pardee, who covenanted to pay the balance of eighteen thousand four hundred dollars ($18,400) within thirty days, during which time McNulta was to discharge both companies of all debts and obligations. The time to clear the properties was extended in order to adjust a certain claim known as the Davis claim. When McNulta delivered the stipulation discharging the Davis claim, he demanded, not from Pardee, who was a party to the agreement, but from Huntington and Crocker, who were strangers to it, the said balance, which was refused. Thereupon McNulta commenced this action against Huntington and Crocker to recover the said balance.
At the time of the commencement of the action the defendants were Collis P, Huntington and Charles F. Crocker. Thereafter Crocker died and the plaintiff was permitted to proceed separately against Huntington. Still later Huntington died, and the action was continued against the present defendants as his executrix and executors. McNulta having also died daring the pendency of the action, Laura McNulta was appointed “ administratrix" to collect ” by the Probate Court of Cook county, 111. Subsequently she was authorized by the said court to assign this cause of action to the above-named plaintiff.
In the consideration of the case there is presented at the very outset the question as to the plaintiff’s right to recover against a party who is nowhere mentioned in. the writen, sealed instrument. This plaintiff does not sue, as the complaint is drawn, in assumpsit. He alleges that a contract was made with Huntington and Crocker, which contract was reduced to writing and signed'and sealed by Pardee, acting as the agent of Huntington and Crocker ; that Pardee was an agent of said Huntington and Crocker, and that he subscribed said agreement as their agent, for them and in their behalf, with full power and authority so to do, and that said agreement was in fact the agreement of said Huntington and Crocker. By express allegation he makes the written, sealed instrument part of the complaint. Under this state of facts, and under this form of pleading, *472it is the' settled- law of this Staté that the plaintiff could not maintain this action against Huntington while living, or against his representatives after his death. The law upon this' precise question is clearly declared in the leading case of Briggs v. Partridge (64 N. Y. 357; affd. in Kiersted v. O. & A. R. R. Co., 69 id. 343; Schaefer v. Henkel, 75 id. 378; Henricus v. Englert, 137 id. 488; Whitehouse v. Drisler, 37 App. Div. 525; Williams v. Magee, 76 id. 512).
That the precise point here involved was decided by these cases might be shown by extracts from each of the opinions. It' will be sufficient for our purpose, however, to quote the language of Earl, J., in Henricus v. Englert (supra): “ Where an instrument is under seal, no person can sue or be sued to enforce the covenants therein contained, except those who are named as parties to the instrument, and who signed and sealed the same.”
■ As this is the law, it was error to receive evidence of the facts tending to show that Huntington and Crocker were the actual principals. But such evidence was admitted, so that upon an appeal, if any should be taken, all the facts might be before the appellate tribunals. The evidence so improperly admitted proved that the negotiations of purchase' and sale of the shares of stock in the corporations mentioned were had by McNulta with Huntington and Crocker; that between these three persons the terms of the contract as subsequently reduced to writing were agreed upon, and that after being written out,1 Pardee was named as the party of the second part to the agreement upon, the suggestion of Huntington and Crocker; that Huntington and Crocker stated to McNulta that the name written in the contract made "no difference as to their liability, and that Pardee was acting as their agent, and that the agreement was to all intents' and purposes the agreement of Huntington' and Crocker;' and furthermore, subsequent to the signing of the agreement and the payment of the fourteen thousand one hundred dollars ($14,100), negotiations were had between McNulta and Huntington as to the liens-and" claims upon the property, and that when the final breach came that breach Was openly declared .'by Huntington.
Plaintiff’s counsel; in' a full and able brief, argues that this testimony was properly admitted. In support of his position he relies upon text books and upon precedents in other jurisdictions. (Huffcut Agency-[2d edl], § 188; Mech. Agency, § 702; Lancaster v. *473Knickerbocker Ice Co., 153 Penn. St. 427; Stowell v. Eldred, 39 Wis. 614; Love v. S. N. L. W. & M. Co., 32 Cal. 639.)
The authors and cases cited bear out his contention, but they go-further in narrowing the paroi evidence rule, or in overturning the substantive law that such a claim is not tenable, than do the courts, of this State. Within our own jurisdiction, it is true, there are authorities tending to modify the import of a seal. (Blewitt v. Boorum, 142 N. Y. 357; Bridger v. Goldsmith, 143 id. 424.)
But these cases are not decisive of the question here involved, and, so far as that question is concerned, are mere dicta. They do not pass upon the right of substituting fora party named in a. sealed instrument another and different party who is .not mentioned therein* They do minimize the import of a seal, and regard it, when attached to a contract that is valid without it, as mere surplusage. It is also-true that a seal is no longer in the law the fetish that it once was,, but it still stands for something. By statute* it is presumptive evidence of a sufficient consideration which.may be rebutted as if the instrument was not sealed; its presence makes the document to which it is attached a specialty instead of a simple contract; and ant action may be brought upon a sealed instrument within twenty-years, fourteen years after the Statute of Limitations might be successfully invoked against the same contract unsealed.†
But conceding, as we must, that this contract is absolutely valid, without a seal, and regarding the seal as' of little moment, the plaintiff’s position is not bettered.
In Schaefer v. Henkel (supra) a lease was executed by one Brown, who was described in the written document as “ agent,” and his principals endeavored to maintain an action against the lessee-named in the instrument, and the court there said: “ It is, therefore, settled law that in order to take a casé 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 that the party derived benefit from and accepted and confirmed it by acts on his part.”
Judge Miller concludes his opinion with the statement that *474The principle has long been settled by authority that to render an instrument of this nature sighed by an agent in his own name; binding on the principal, it must appear from 'the contract itself that it purports to be made by the principal before it can be considered as obligatory upon the principal.”
Proceeding .further than a mere disregard of the seal,, the plaintiff attempts to disregard the writing itself, except as evidence of a contract between McNulta on the one hand and Huntington and 'Crocker on the other. This, however, cannot be done under a complaint which pleads and rests upon the written contract itself.
Going still further, the plaintiff seeks to maintain his action upon thé theory of an estoppel, or what is practically the same thing, an implied obligation arising from the facts in the case. The difficulty here is that the facts necessary to invoke either doctrine cannot be established in this action; since the objections taken by the defendant to the introduction of any evidence implicating Huntington and ^Crocker were, well taken.
A conclusion favorable to the defendants on the main question in this action having thus been reached, it is not strictly necessary.to consider other objections that have been raised by the "defendants. As, however, they have been persistently urged and fully considáidered, it may not be amiss to notice them briefly.,
The point is made that the plaintiff has not legal capacity to sue' on the ground that the letters of administration to the plaintiff’s assignor authorized the administratrix only to collect and secure the property of John McNulta “in this State” (Illinois), and that the situs of the present claim being without the State of Illinois, she was given no power over it, and that, therefore, her assignee is without capacity to sue. The court which granted the letters of administration expressly authorized the assignment of this cause of action to the plaintiff herein, andprima facie, therefore, by virtue of the ; ■direction of the court, the plaintiff has such capacity. • Moreover; by the terms of the Will of John McNulta, his . personal property passed to the plaintiff’s assignor, who, consequently, had authority to make, the assignment independently of the authority conferred by the court. ‘ •
It is also asserted by the defendants that the Davis claim was not discharged at the time of the commencement of this action. The *475facts are that a stipulation dismissing that action by the plaintiff’s attorney was delivered prior to the time of the commencement of this action, and knowledge thereof brought home to Huntington. No formal order was entered thereon until after the commencement ■of this action. In iny judgment there was a substantial performance pursuant to the terms of the contract which provided that the balance of eighteen thousand four hundred dollars ($18,400) should-be withheld out of the purchase price until the final adjustment of said claim.
On -the hearing the defendants introduced in evidence the record •of an action commenced by Go Look against the San Francisco* Clear Lake and Humboldt Railroad Company and others, begun in the Superior Court of the city and county of San Francisco, State •of California, August 16, 1889. A summons and writ of attachment were issued in the action, but the summons was never served ■on any of the defendants. Subsequently, on motion, on June 29, 1903, the action was dismissed". At the time the contract was signed no reference to the Go Look claim was made, nor was it known to exist by either of the parties hereto or by Huntington, and Crocker, so far as the proof shows. At the time the demand was made for the balancé alleged by the complaint herein to be due no reference to the Go Look action was "made; Under these circumstances as "well as under the Code of Civil Procedure and the statutes of California, there is no ground for holding that the Go Look action-was an outstanding debt or obligation or a contested claim within the terms of the agreement.
The complaint herein must be' dismissed, with costs to the defendant.
Appeal from orders dismissed. Judgment affirmed, with costs.
Code Civ. Proc. § 840.— [Rep.
See Code Civ. Proc. §§ 381, 382.— [Rep.