Albany Rensselaer Iron Steel v. Lundberg

• Decision Date: 25 April 1887
• Citation: 30 L.Ed. 982,7 S.Ct. 958,121 U.S. 451
• Parties: ALBANY & RENSSELAER IRON & STEEL Co. v. LUNDBERG
• Court: U.S. Supreme Court

121 U.S. 451

7 S.Ct. 958

30 L.Ed. 982

ALBANY & RENSSELAER IRON & STEEL Co. v. LUNDBERG.

April 25, 1887.

Amasa J. Parker and Edwin Countryman, for plaintiff in error.

Everett P. Wheeler, for defendant in error.

GRAY, J.

This action was brought by Gustaf Lundberg, an alien and a subject of the kingdom of Sweden and Norway, residing at Boston, in the state of Massachusetts, against the Albany & Rensselaer Iron & Steel Company, a corporation of the state of New York, upon two contracts for the sale and purchase of Swedish pig-iron, the first of which was as follows:-

'N. M. HOGLUND'S SONS & CO., STOCKHOLM;

'GUSTAF LUNDBERG, SUCCESSOR TO NILS MITANDER.

'38 KILBY STREET, BOSTON, February 10, 1880.

'I, Gustaf Lundberg, agent for N. M. Hoglund's Sons & Co., of Stockholm, agree to sell, and we, Albany and Rensselaer Iron and Steel Co., Troy, N. Y., agree to buy, the following Swedish charcoal gray pig-iron, viz.: 500 tons of brand 'NBGPH,' at a price of forty-eight ($48) dollars, American gold, per ton of 2,240 lbs., delivered on wharf at New York, duty paid; said iron to be in accordance with an analysis furnished in Gustaf Lundberg's letter of sixth February. Payment in gold in Boston or New York funds within 30 days from date of ship's entry at custom-house. Shipment from Sweden during the season, say May next, or sooner, if possible. The above quantity hereby contracted for to be subject to such reduction as may be necessitated by natural obstacles and unavoidable accidents. The seller not accountable for accidents or delays at sea. Signed in duplicate.

'Accepted: GUSTAF LUNDBERG.

'Accepted: ALBANY & RENSSELAER IRON & STEEL CO.'

The other contract differed only in being for the sale and purchase of '300 tons of brands 'SBVE' and 'NBBBK."

The analysis referred to in both contracts showed in the first brand .03, and in the two other brands .024, of 1 per cent. of phosphorus.

The above amount of iron was made in Sweden, that of the first brand at the Pershytte furnace of the Ramshyttan Iron-Works, out of ore from the Pershytte mines, and that of the two other brands at the Svana Iron-Works, was bought and shipped from Stocko lm by N. M. Hoglund's Sons & Co., in May, 1880, arrived at New York in June, 1880, and was thence taken to the defendant's works, at Troy. An analysis there made by the defendant's chemist showed in the three brands, respectively, .047, .042, and .049 of 1 per cent. of phosphorus. The defendant therefore refused to take the iron, and returned it to the plaintiff, who afterwards sold it for less than the contract price, brought this action to recover the difference, and obtained a verdict and judgment for upwards of $15,000. The defendant sued out this writ of error.

The first question presented by the bill of exceptions is whether this action can be maintained in the name of Lundberg, or should have been brought in the name of his principals, N. M. Hoglund's Sons & Co. The paper upon which each of the contracts in suit is written has at its head, besides the name of that firm, the name of 'Gustaf Lundberg, successor to Nils Mitander,' followed by the street and number of his office in Boston. The contract itself begins with a promise by him in the first person singular, 'I, Gustaf Lundberg, agent for N. M. Hoglund's Sons & Co., of Stockholm, agree to sell;' the description added to his name in this clause is the only mention of or reference to that firm in the contract; his promise is not expressed to be made by him as their agent, or in their behalf; and the agreement is signed by him with his own name merely.

There are strong authorities for holding that a contract in such form as this is the personal contract of the agent, upon which he may sue, as well as be sued, in his own name, at common law. Kennedy v. Gouveia, 3 Dowl. & R. 503; Parker v. Winlow, 7 El. & Bl. 942; Dutton v. Marsh, L. R. 6 Q. B. 361; Buffum v. Chadwick, 8 Mass. 103; Packard v. Nye, 2 Metc. 47. In Gadd v. Houghton, 1 Exch. Div. 357, the contract which was held not to bind the agent personally was expressed to be made 'on account of' the principals; and in Oelricks v. Ford, 23 How. 49, in which the contract which was held to bind the principal more nearly resembled that before us than in any other case in this court, the important element of a signature of the agent's name, without addition, was wanting.

But it is unnecessary to express a definitive opinion upon the question in whose name, independently of any statute regulating the subject, this action should have been brought.

The Code of Civil Procedure of the state of New York contains the following provision:

'Sec. 449. Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.'

Under this provision, the court of appeals of that state has held that an agent of a corporation, to whom, 'as executive agent of the company,' a promise is made to pay money, is 'a person with whom, or in whose name, a contract is made for the benefit of another,' and may therefore sue in his own name on the promise. Considerant v. Brisbane, 22 N. Y. 389. The rule thus established is applicable to actions at law in the courts of the United States held within the state of New York. Rev. St. § 914; Sawin v. Kenny, 93 U. S. 289; Weed S. M. Co. v. Wicks, 3 Dill. 261; U. S. v. Tracy, 8 Ben. 1.

The case, then, stands thus: If the agreement to sell is an agreement made by Lundberg personally, and not in his capacity of agent of the Swedish firm, the price is likewise payable to him personally, and the action on the...