Hymer v. Ijams ex rel. Baltimore & Ohio Railroad

Magruder, J., delivered the opinion of the Court. The bill of exceptions presents the question of the propriety of the ruling of the Court below, in rejecting the appellants’ prayers, which sought to preclude the appellee’s right to recover upon a promissory note, given in the name of “ W. H. Ijams, Treasurer,” but shown to have been given for a debt due the Baltimore and Ohio Rail ⁴⁷² road Company, and taken by the Vice-President, in the-absence of Ijams, who was the treasurer of the company; the note according to the usage of the company being made payable to Ijams because he was treasurer, and sent to him afterwards, and held by him as treasurer, to receive payment thereof; though the suit was not actually brought by Ijams but by the company, using his name as plaintiff. The objection made to the right of the appellee to maintain the action is, that he was not present at the taking of the note, that the contract was therefore not made with him, and that this does not come within the classes of' cases in which an agent may sue in his own name. But ’ it must be clear that when the maker signed the note in the form in which it appears, thus recognizing Ijams as the agent and trustee of -the company to receive the money, and the note is received and held by him, thereby accepting the trust, that it, at once, by this recognition on the part of Ijams, became a complete contract, made expressly with the agent, and purporting to be a contract personally with hip, and coming therefore directly within the first class of cases laid down in Story on Agency, sec. 393, and-followed by 1 Wait’s Actions- and Defences, 2⁷⁸, (as quoted by the learned counsel for the appellants,) which says that “ where the contract is a written one, made expressly with the agent, and purporting to be a contract personally with him, there the agent may sue in his own name.” Here the contract sued on is the note.

We have here,, therefore, a written contract. It is made expressly with the agent, for the acceptance of the agency or trust by Ijams is a completion of the contract, and the defendant who agreed to contract with him, cannot be heard to object after he ratifies it¡ It purports to be a contract personally with the agent. We have then here existing all the elements which are laid down as constituting the right of the agent to maintain the suit in his own name. ⁴⁷³ That an agent may in such case, maintain the suit seems fully settled. Indeed, it has been held that the agent is the only one who can sue.

In the case of Van Ness vs. Forrest, 8 Cranch, 31 , (a case like that before us,) Chief Justice Marshall says : “ Such a suit can be brought only in the name of Joseph Forrest. It can no more be brought in the name of the company, than if it had been given to a person not a member of the company, for the benefit of the company. The legal title is in Forrest, who retains the money in his own name as trustee for the company.” And although in the more recent case of Baldwin vs. Bank of Newberry, 1 Wall., 234 , the Supreme Court maintains the right of the principal to sue in such a case, yet it is not intimated that the suit could not be maintained in the name of the agent, the principal not objecting. On the' contrary, the language of Parsons is ’ quoted as if with approval, certainly not with dissent, to the effect that “ if a bill or note is made payable to A. B., cashier, without any other designation, there is authority for saying that an action may be maintained on it, either by the person named as payee, or by the bank of which be is cashier, if the paper was made, and actually received on account of the bank.

And the authorities cited by the author fully sustain the position.” In Story on Agency, after laying down (in sec. 393,) the classes of cases in which an agent may sue, (the first of which classes we have before mentioned,) the learned author in sec. 394, says : “ The first class may be illustrated by the common instance of a promissory note, given to an agent as such, for the benefit of his principal, where the