Bradstreet v. Baker

• Decision Date: 12 July 1884
• Citation: 14 R.I. 546
• Parties: JOSEPH C. BRADSTREET et al. v. ELIJAH C. BAKER et al.
• Court: Rhode Island Supreme Court

14 R.I. 546

JOSEPH C. BRADSTREET et al. v. ELIJAH C. BAKER et al.

Supreme Court of Rhode Island.

July 12, 1884

A sealed instrument began: " Agreement made this … between the A. Company, party of the first part, by B. agent and C. and D. parties of the second part, witnesseth." … In the instrument the parties were spoken of merely as " the said party of the first part" and " the said parties of the second part." The testimonium clause was: " In witness whereof the parties have hereunto affixed their hands and seals the year and day first above written." It was signed " B. agent" [L. S.] C. [L. S.] D. [L. S.]

Held, that it was the deed of the A. Company.

The instrument provided that the A. Company was to furnish, and C. and D. were to receive, betweeen certain dates, five thousand tons of ice at a specified price, and that C. and D were to pay in full in cash at the same price for all the ice not received by them at the last date; such ice not received to remain the property of the A. Company. C. and D. made default by not receiving the ice.

In covenant brought against them by the A. Company:

Held, that the stipulated price for the five thousand tons was a penalty, not liquidated damages.

Held, further, that the A. Company should receive its actual damages.

COVENANT. On demurrer to the pleas.

Edward D. Bassett & Frederic Hayes, for plaintiffs.

James G. Markland, for defendants.

DURFEE C. J.

This is an action of covenant broken. The covenant, if valid, is a covenant by which the de fendants bound themselves to receive from the plaintiffs, dealers in ice, and copartners under the firm of the Centennial Ice Company, at Pittston, Maine, between June 1, 1878, and October 1, 1878, five thousand tons of ice, and to pay them for it at the rate of one and one half dollars per ton, and to pay in full in cash at said rate for all the ice remaining unshipped October 1, 1878, the ice so remaining to be the property of the plaintiffs. The defendants made default by not receiving, though the plaintiffs were ready to deliver, the ice according to the contract. The plaintiffs sue for damages, claiming the stipulated price of the five thousand tons as liquidated damages. The defence is: first, that the defendants are not bound because the plaintiffs were not bound by the covenant, the obligations thereof being mutual or dependent; and second, that the plaintiffs can recover only their actual damages, the stipulated damages being manifestly designed as a penalty.

The first question is: Did the plaintiffs bind themselves by the covenant? The contract was not executed by the plaintiffs in person, but it was negotiated for them and signed by their agent, J. S. Bradstreet, who had a sufficient power of attorney under seal. The contract begins thus: " Agreement made this fifteenth day of February, 1878, between the Centennial Ice Company, of Pittston, Me., party of the first part, by J. S. Bradstreet, agent, and Joseph K. Baker, of Dennisport, Mass., and E. C. Baker, of Providence, R.I., parties of the second part, witnesseth." The stipulations contained in the body of the instrument purport to be stipulations between " the said party of the first part" and " the said parties of the second part," no names being given. It concluded as follows, to wit:

" In witness whereof the parties have hereunto affixed their hands and seals the year and day first above written.

(Signed)

" J. S. BRADSTREET, Agent, [L. S.]

" J. K. BAKER, [L. S.]

" E. G. BAKER, [L. S.]"

The defendants contend that the execution was ineffectual because the instrument does not contain the signatures of the party of the first part by their agent, but only the signature of the agent himself. Undoubtedly in the execution of a deed by an agent the most approved form is for the agent to sign the name of his principal, writing his own name below, with the word " " agent" following, and the preposition " by" preceding it. See City of Providence v. Miller, 11 R.I. 272, 277, and cases there cited. But the form is not material provided it appears on the face of the instrument that the deed was executed by the principal acting through his agent and not by the agent himself. In Wilks v. Back, 2 East, 142, an arbitration bond was given by Mathias Wilks for himself, and under a power, for his copartner James Browne. The signatures were affixed as follows, to wit: " Mathias Wilks, [L. S.]" " For James Browne, Mathias Wilks, [L. S.]" The Court of King's Bench decided that the execution was good. " Here the bond was executed," say the court, " by Wilks for and in the name of his principal; and this is distinctly shown by the manner of making the signatures. Not even this was necessary to be shown, for if Wilks had sealed and delivered it in the name of Browne, that would have been enough without stating that he had so done." The case was followed with approval in Mussey v. Scott, 7 Cush. 215, where the form of the signature was " B. for A." It was also followed by the Supreme Court of Vermont in McDaniels v. Flower Brook Manuf. Co. 22 Vt. 274. There the operative clauses were in the name of the corporation " by William Wallace, their agent; " the covenants were in the name of the corporation. The deed concluded, " In witness whereof we have hereunto set our hand and seal," and the signature was, " William Wallace, Agent for the Flower Brook Manufacturing Company." The court said that the execution, in connection with what preceded it, must be understood to be an execution in the name of the company. And see to the same effect Martin v. Almond, 25 Mo. 313. It seems to us that there is no material distinction between these cases and the case at bar. The case at bar would be identical with them if the words " for the Centennial Ice Company" had been added to the signature. But those words if added would express...