Barry v. Page

76 Mass. 398

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1858
• Status: Published

Opinion

Bigelow, J.

1. The objection to the jurisdiction of the court over the person of the defendant comes too late after he has pleaded to the merits and had a verdict rendered against him. Brown v. Webber, 6 Cush. 564. Loomis v. Wadhams, 8 Gray, 561.

2. As the contract of an agent is in law the contract of the principal, the latter may come forward and sue thereon, although at the time the contract was made the agent acted as and appeared to be the principal. There is a qualification of the rule, by which it is held that when a contract has been made for an undisclosed principal, who permits his agent to act as apparent principal in the transaction, the right of the former to intervene and bring suit in his own name is not allowed in any way to affect or impair the right of the other contracting party, but he will in such case be let in to all the equities, set-offs and other defences to which he would have been entitled, if the action had been brought in the name of the agent. But in the case at bar it does not appear that the defendant has any defence to the action, which he could have made if it had been brought by the agent. The objection is purely technical, and goes only to defeat the right of action by the principal, irrespectively of any meritorious answer to the suit.

It has been sometimes said that when a sale is made by a factor for a foreign principal, the latter cannot sue for the price. This supposed exception has been puf on the ground that in such case the presumption at law is, that exclusive credit was given to the agent, and therefore the principal cannot be treated in any manner whatever as a party to the contract. But the later and better opinion is, that there is no such absolute presumption, and that a principal, whether foreign or domestic may sue to recover the price of goods sold by his factor, unless it is made affirmatively to appear that exclusive credit was given vO the agent, by proof, other than the mere fact that the piincipal resided in another state or country. Story on Agency, § 420. Paley on Agency, (4th Amer. ed.) 324, note. Taintor v Prendergast, 3 Hill, 72. Ilsley v. Merriam, 7 Cush. 242. No fact appears in the exceptions to show any exclusive credit by which to take-the present case out of the ordinary rule by which the principal can maintain an action in his own name.

Exceptions overrated