By the Court,
Savage, Ch. J,The first question in the order in which the objections arose in the court below is, whether the preliminary proof was sufficient to authorize the introduction of the deposition which was read in evidence. This species of evidence is only admissible when it is shewn that the personal attendance of the witness cannot be compelled by the party ; the court want evidence to satisfy them of that fact. In this case sufficient was shewn to authorize the introduction of the deposition. The witness was a transient person, having no fixed habitation any where-^a journeyman carpenter» who was seeking employment, and said at the time of his examination that he should shortly leave the state. This question is not very important to the decision of this case, as every important fact necessary to sustain the plaintiff’s action proved by the deposition, was proved by other witnesses examined in open court.
Another point raised here is that there was a variance between the contract declared on and that produced in evidence. This question was not raised in the court below; but, I apprehend, if made there, could not have availed the defendant. There is a variance in omitting a few words in that part of the contract which regulates the manner of payment of wages ; but as the statement of that part of the covenant was_mere surplusage, and had ho connection with the part on which the action is founded, the mistake can have no possible effect. The only breach proved, was that for which damages were given, to wit, the failure to find the plaintiff a passage to Bogota» *30where he was to have been employed. The judge placed the cage correctly before the jury.
The only important question in the case is, whether Guyon or Simonson was the contracting party. The contract in question is so precisely similar to that on which the action was brought in Stone v. Wood, 7 Cowen, 453, that a discussion of this question by me would be repetition of what was there said. I understand the point to be as well settled as any in the law, that an agent, to bind his principal, must contract in the principal’s name. Guyon should have written the name of Simonson as the contracting party. He should have so executed the contract that an action could have been sustained upon it against Simonson ; no such action could be brought upon this contract. Had Simonson been described in the body of the instrument as the contracting party, and the signature been, “Isaac Simonson, by his attorney, Henry H. Guyon,’’ or “ Henry H. Guyon, attorney for Issaac Simonson,” the contract would, on the face of it, have been the contract of Simonson ; and he would have been liable for the breach of it, on proving the execution by Guyon and his authority. But proving that Guyon had authority to execute such a contract in Simonson’s name, does not discharge Guyon, so long as Guyon chose to make the contract his own, and not Simon-son’s. This case is not at all like the cases of Frontin v. Small, 2Ld. Raym. 1418, and Bogert v. Bussy, 6 Johns. R. 94. In each of those cases the attorney undertook to do what, upon the face of the contracts, he had no power to do, and therefore they were held void. Is there any such difficulty in this case 1 It was as competent for Guyon to contract with Lewis about employment at Bogota, as it was for Simonson; not so with the attorney who undertook to convey away, as his own act, the real property of another person. The distinction to me appears very manifest. Neither is this case like Randall v. Van Vechten, 19 Johns. R. 60. There the court held the agents discharged, because, by the contract entered into, they had afforded a remedy against their principals, the corpora.tion ; that cannot be pretended here. The case is precisely like Stone v. Wood, and the remarks made in that case are applicable here.
Judgment affirmed, with single costs.