Nelson v. Nixon

13 Abb. Pr. 104

Opinion

By the Court.

*— Daly, F. J.

—No assignment was necessary to enable the plaintiff to maintain this action. He had the right, to sue upon the contract in his own name. Though he describes himself in the contract as the agent of his sisters, he bound himself personally for the performance of it. He signed the contract, and covenanted that his sisters, and he, as their director, would faithfully, diligently, and to the best of their skill and ability, his sisters by acting, and he by directing their acting, do and perform their part in the contract. His sisters being minors, could not enter into any obligation that would be binding upon them; and there was therefore a good reason why the plaintiff should become personally bound, as well for the fulfilment on his part as, upon theirs of what was agreed upon. When a party, though acting as the agent of another, binds himself personally for the fulfilment of a contract, he may sue or be sued upon it. It is one.of the cases in which an agent may enforce the contract by a suit in his own name (Story on Agency); and it is also a rule that persons, though contract- j ing as agents, are liable where there is no responsible principal j to resort to (Paley on Agency, 374), which was,the case here. ! The contract was not signed by the plaintiff’s sisters, and if. it ; had been, and they had become formally parties to it, it could ; not have been enforced against them. It' was signed by the plaintiff alone, and was an -undertaking, on his part, both for him and them. The defendant’s remedy for the non-fulfilment of it would have been against the plaintiff. He could have ’ maintained no action against the' sisters; and such being the ; fact, it can be treated only as a contract between the plaintiff | and the defendant, which the plaintiff had a right to enforce by an action in his own name. ,

_ The return of the justice shows that the question put as to:thé / age of one of the sisters was not excluded; it was put and an- ( swered. Hor does it appear by -the return that the justice < allowed testimony to be given by the plaintiff after both parties | had rested; and if he had, it was a matter entirely in his dis- j cretion, which could not be reviewed upon appeal. '

The judgment should be affirmed.

Present, Daly, F. J., Brady and Hilton, JJ.