Facey v. Otis

• Decision Date: 28 April 1863
• Citation: 11 Mich. 213
• Court: Michigan Supreme Court
• Parties: Richard A. Facey, who was impleaded with others, v. Daniel C. Otis and another

11 Mich. 213

Richard A. Facey, who was impleaded with others, v. Daniel C. Otis and another

Supreme Court of Michigan

April 28, 1863

Heard April 15, 1863 [Syllabus Material]

Error to Calhoun Circuit, where Otis & Ditmars brought action against the plaintiff in error and others, as members of the firm of Fulsom & Benedict, upon a written instrument which is set forth in the opinion, and recovered judgment. The errors alleged in this court were the admission in evidence of the depositions of Thomas & Boun, taken on commission, and the reception of parol evidence to show that the contract of defendants by the written instrument was with plaintiffs, and not with Seymour & Sleight, who are mentioned in it.

Judgment affirmed with costs.

Hughes & Woolley, for plaintiffs in error:

The deposition taken under the commission should have been excluded, as there was no provision for its return to the court. This is an objection to the substance, and not the form of the deposition.

Parol evidence to show that Seymour & Sleight were agents of plaintiffs, in making the agreement, was erroneously admitted in evidence: Stackpole v. Arnold, 11 Mass. 27; Newcomb v. Clark, 1 Denio 226; Fenly v Stewart, 5 Sandf. 201; Finney v. Bedford Com. Ins. Co., 8 Met. 348; Finney v. Warren Ins. Co., 1 Met. 16; Turner v. Burrows, 5 Wend. 541; 1 Pars. on Cont., 48 (a), and cases cited.

Seymour & Sleight could, beyond question, maintain this action in their names; and if the plaintiffs can also do so, then a recovery may be had twice for the same cause of action: Hale v. Boardman, 27 Barb. 82; Barker v. Bucklin, 2 Denio 45; Farley v. Cleveland, 4 Cow. 432; 4 Denio 97.

There are cases holding that an unnamed principal may come in and take the benefit of a written contract with an agent who acted in his own name: Vide 1 Pars. Cont., 49 (a), and cases cited.

Whatever weight may be given to these cases, they have no application to this case. The contract in question was not made by an agent, but was made by one of the plaintiffs himself.

Brown & Greenough and C. I. Walker, for defendants in error:

1. Notice of filing the depositions having been given, and no objections having been made, all objections of form were waived Circuit Court Rule 51.

2. If an agent make a written contract, in his own name for the benefit and by the authority of his principal, can the principal sue or be sued thereon?

In cases of parol contracts, there is no question but that the principal may thus sue or be sued: Story on Agency, § 446; 2 Smith Lead. Cas., 212, 233, 227; 1 Am. Lead. Cas., 643; Thompson v. Davenport, 9 B. & C., 78; Beebee v. Robert, 12 Wend. 416; Taintor v. Prendergast, 3 Hill 72.

The same rule is now firmly established in England in relation to written contracts: Story on Agency, 160, a, to 162, 270, n, 420, n; 2 Smith Lead. Cas., 223 to 225; Bateman v. Phillips, 15 East, 272; Skinner v. Stocks, 4 B. & Ald., 437; Garrett v. Handley, 4 B. & C., 664; Cothay v. Fennell, 10 B. & C., 672; Sims v. Bond, 5 B. & Ad., 389; Jones v. Littledale, 6 A. & E., 486; Trueman v. Loder, 11 A. & E., 589; Higgins v. Senior, 8 M. & W., 834; Beckham v. Drake, 9 M. & W., 79; 11 M. & W., 313; Humble v. Hunter, 12 Q. B., 310; Small v. Atwood, 1 Younge 407.

This rule does not, under these decisions, extend to contracts under seal, nor to negotiable paper.

In this country, the decisions are not so uniform, and some of them deny the application of the rule to written contracts. But most of this class of cases have reference to negotiable paper, and to that extent are not inconsistent with the English rule.

We submit that the weight of American authority is in accordance with the English rule: Hubbert v. Borden, 6 Whar. 79; Com. Bank v. French, 21 Pick. 490; Huntington v. Knox, 7 Cush. 371; Eastern R. R. Co. v. Benedict, 5 Gray 562; Bank of U.S. v. Lyman, 20 Vt. 673; Monro v. Pt. Henry Iron Co., 12 Barb. 53; Dupont v. Mt. Pleasant F. Co., 9 Rich. 258; Wilson v. Bailey, 1 Handy 177; N. J. S. Nav. Co. v. Mer. Bank, 6 How. 381; Ford v. Williams, 21 How. 287.

We submit, therefore, that the decision of the court below was right, both according to the English and American authorities.

But we say that, in this case, parol testimony was unquestionably admissible, under all the authorities, for the reason that the contract itself indicates the agency. And in such case, or where the contract is ambiguous, parol testimony is clearly admissible to show the relation of the parties: 1 Am. Lead. Cas., 632-3; Edw. on Notes, 83-4; Mech. Bank v. Bank of Columbia, 5 Wheat. 326; Merchants' Bank v. Central Bank, 1 Kelly 418; Rutland R. R. Co. v. Cole, 24 Vt. 33.

Manning, J. Martin, Ch. J. and Campbell, J. concurred. Christiancy, J. did not sit in this case.

OPINION

Manning J.:

The 51st of the Circuit Court rules provides, that the party taking any deposition shall, upon the same being received and filed by the clerk, give notice thereof to the opposite party, and that all objections of form to any such deposition shall be waived, unless the same shall be filed in writing and served upon the opposite party, within ten days after such notice. No instructions were sent with the commission for returning it after it had been executed. It was returned by the commissioner to the clerk of the court by mail, and notice of the return was given to defendant's attorney, who filed no objections; but objected to the reading of the depositions at the trial. The return of the commission and depositions, by mail, without instructions for that purpose, was at most only an irregularity, in no way affecting the execution of the commission, and covered by the 51st rule of the court.

The next objection is one of more importance. It is as to the admission of evidence on the trial.

The action is on that part of the following instrument, by which defendants agreed to let Messrs. Seymour & Sleight have nine hundred and seventy dollars worth of goods:

"We agree to secure Otis & Ditmars with a mortgage on two lots in Marshall, for two notes, four and eight months, each of five hundred dollars, payable at Charles T. Gorham's banking office, in Marshall, Mich. Notes dated May 27, 1858, one eight months, and one four months. We also agree to let Messrs. Seymour & Sleight draw nine hundred and seventy dollars worth of goods out of the stock at Kalamazoo, as they may need, to pay their customers for potatoes, lumber and grain, that they are furnishing with goods.

"Folsom & Benedict.

"May 31, 1858."

This instrument was offered in evidence, with a proposition to prove by Seymour, that he and Sleight were agents of ...