SCHAEFER v. HENKEL

SCHAEFER v. HENKEL. N. Y. Court of Appeals ; November, 1878. Lease.—Piuncipal and Agent.—Pabties.—Bead.—Evidence. An action upon a lease under seal must be brought by and in the name of a person who is named therein as a party thereto, or by an assignee of such party. Where it distinctly appears from the instrument executed that the seal affixed is the seal of the person subscribing, who designates himself as agent, and not the seal of the principal, the former only is the real party who can maintain an action thereon. To enable a person not apparently a party to recover on the contract as one which is valid without a seal, it must appear that it was really made on behalf of the principal, from the instrument, and that he derived benefit from and ratified it by acts on his part. Where a complaint is founded entirely upon a deed, and plaintiff on the trial claims to recover solely by virtue thereof, and the deed cannot be enforced as a sealed instrument, it cannot be resorted to as evidence of an agreement, which would be valid without seal. To render a lease under seal, signed by an agent in his own name, - binding on the principal, it must appear from the lease itself that it purports to be made by the principal, before it can be considered as obligatory upon the principal. Appeal by plaintiffs from a judgment of the general term of the New York court of common pleas, affirming a judgment dismissing complaint. The action was brought by Frederick Schaefer and Max Schaefer against Charles Henkel, upon a written lease of certain premises in New York city to the defendant. The plaintiffs were not parties to the lease upon which the action was brought. It was not signed by them. Their names did not appear in it, and there was nothing in the lease to show that they had anything to do with, or any interest in, the demised premises, or the execution of the lease, or that it was executed in their behalf. It was made by one Brown, as lessor, who is described therein, and who signed it as agent, but it was not stated in the lease for whom he acted. The covenants were all between “ J. Bomaine Brown, agent, the party of the first part,” and the defendant as party of the second part, and it was not made to appear that the defendant had any knowledge or intimation whatever that Brown was acting on the behalf of the plaintiffs, or for their benefit. For whom Brown was agent was not made known to the defendant, and it only appeared, by parol proof upon the trial, that Brown was authorized orally by the plaintiffs to make a demise of the premises described in the lease. The signature of Brown was as agent, and his seal was attached to the instrument, and the same was also signed and sealed by the defendant. The plaintiffs, without any assignment of Brown’s interest under the lease, brought this action to recover the rent unpaid, upon the ground that Brown merely acted as their agent by their authority, and that they are the actual parties in interest. The question to be determined is whether the actual owners of the lease, which is in the nature of a deed iiiter partes, which was not and does not on its face show that it was executed by them, but which does show an execution by a third person claiming to act as agent without disclosing the name of his principal, and which contains covenants between the parties actually signing and sealing the saíne, can maintain an action upon it for the rent reserved therein, even although the person who executed the same, describing himself “agent and party of the first part,” had oral authority to enter into the contract, and acted as the owner’s agent in the transaction. James A. Leering, for plaintiffs, appellants. The plaintiffs can sue upon the agreement made by their agent in his own name (Coleman v. Loder, 53 N. Y. 393; Ford v. Williams, 21 How. Pr. 289; Dykers v. Townsend, 24 N. Y. 61; Story on Agency, §§ 148, 160, 163, 420, and cases cited). That the lease was under seal, and sealed by the agent, does not alter the rule (2 R. S. part II. tit. 1, c. 7, §§ 8, 9). Not being required to be under seal it may be regarded as a simple contract, and the seal may be regarded as surplusage (Haight v. Sahler, 30 Barb. 218; Worrall v. Munn, 2 N. Y. 229 ; Morgan v. Reid, 7 Abb. Pr. 215; Lawrence v. Taylor, 5 Hill, 113 ; Bank of Columbia v. Patterson, 7 Cranch, 229 ; Evans v. Mills, 12 Wend. 340; Randall v. Van Vechten, 19 Johns. 60; Dubois v. Delaware & Hudson Canal Co., 4 Wend. 285; Lawrence v. Taylor, 5 Hill, 107. See also Evans v. Wells, 22 Wend. 324; Story on Agency, § 277; 1 Am. Leading Cas. 735, note). Under the Code the plaintiffs alone can sue upon the agreement made by Brown (Code of Pro. § 111; Cummings v. Morris, 3 Bosw. 560; Selden v. Pringle, 17 Barb. 468; Hastings v. McKinley, 1 E. D. Smith, 273; Considerant v. Brisbane, 2 Bosw. 470; S. C., 22 N. Y. 389; Poor v. Guilford, 10 Id. 273). Under defendant’s waiver of further proof by plaintiffs it must be assumed that the plaintiffs had other and proper evidence sufficient to establish the contract (Colgrove v. Hartford & New Haven R. R. Co., 6 Duer, 382; Norris v. Badger, 6 Cow. 449; Fearing v. Irwin, 55 N. Y. 486; Grim v. Hamel, 2 Hilt. 434). James GlarJc and J. Henry McCarthy for defendanfc, respondent. No action can be maintained on the lease by the plaintiffs (Chitty on Contracts, 11 Amer. Ed. 77; Clarke’s Lessee v. Courtney, 5 Pet. 319; Spencer v. Field, 10 Wend. 88; Howe v. Howe, 1 N. H. 49 ; Hinkley v. Fowler, 15 Mass. 285; Townsend v. Hubbard, 4 Hill, 351; Taylor on Landlord and Ten. § 139 ; Briggs v. Partridge, 64 N. Y. 362 ; Union India Rubber Company v. Tomlinson, 1 E. D. Smith, 364 ; Andrew v. Estes, 11 Me. 267; New England Marine Ins. Co. v. De Wolf, 8 Pick. 56 ; Potts v. Rider, 3 Ham. [Ohio] 71 ; Berkeley v. Hardy, 5 B. & C. 355; Montague v. Smith, 13 Mass. 404; Combe’s case, 9 Coke, 75 ; Story on Agency, 4 ed. §§ 160, 270, 422; Huntington v. Knox, 7 Cush. 374). The plaintiffs are not helped by the Code (§§ 111, 113; Chicago & Great Eastern Rw. Co. v. Dane, 43 N. Y. 240; Lesler v. Jewett, 12 Barb. 502). Brown having no written authority, and the term being for more than one year, is void as the act of the principals (3 R. S. 6 ed. p. 141, §§ 6, 8, 9 ; Post v. Martens, 2 Rob. 437). The doctrine of ratification has no application. An action can be maintained in the name of Brown, whose right defendant is estopped from denying (Potts v. Rider, 3 Ham. [Ohio] 71 ; Vernan v. Smith, 15 N. Y. 327). See note at end of case. [MAJORITY — Miller, J.] Miller, J. [After stating the facts.] The rule seems to be quite well established, that, in general, an action upon a sealed instrument of this description must be brought by and in the name of a person who is a party to such instrument, and that a third person, or a stranger to the instrument, cannot maintain an action upon the same. The question presented has been the subject of frequent consideration in the courts, and I think it is established in this State that where it distinctly appears from the instrument executed that the seal affixed is the seal of the person subscribing, who designates himself as agent, and not the seal of the principal, that the former only is the real party who can maintain an action on the same. He alone enters into the covenants, and is liable for any failure to fulfill, and he only can prosecute the other party. He is named in the indenture as a party, and an action will not lie on behalf of or against any one not a party to the instrument, or who does not lawfully represent or occupy the place of such party. It is unnecessary to review all the decisions bearing upon the question, as in a very recent case the principle discussed has been considered by this court, and the whole subject, as well as the decisions relating to the same, deliberately and carefully reviewed (see Briggs v. Partridge, 64 N. Y. 357). In the case cited, an action was brought to recover purchase-money unpaid upon a contract for the sale and purchase of lands. The complaint alleged that the plaintiffs entered into an agreement in writing with one Hurlburd, who was acting under the authority of the defendants, whereby the plaintiffs sold, and the defendants through Hurlburd bought, a certain described piece of land, for a price named, which price the defendants, through their agent, Hurlburd, agreed to pay, as specified. The agreement was in writing, but did not show that Partridge was a principal party, and was signed and sealed by Hurlburd individually. The name of Partridge did not appear in the instrument, but the plaintiffs offered to prove that Hurlburd was acting solely for, and under the direction of Partridge, who made or caused the first payment to be made as Partridge’s agent or trustee in the transaction, and that his authority was oral. Proof was also offered to show that Hurlburd was constituted such agent by parol, and that the plaintiffs did not know that Partridge was the real principal. ' The complaint was dismissed, and it was held by this court that a contract of this description, under seal, could not be enforced- as the simple contract of another, not mentioned in, or a party to the instrument, on proof that the under-named had oral authority from such other to enter into, the contract, and acted as agent in the transaction, at least, in the absence of proof of some act of ratification on the part of the undisclosed principal. The opinion of Ahdeews, J., in the case cited, fully covers the question now presented, and it appears to be unnecessary to review or examine the prior cases which have a bearing upon the subject. Unless some distinction of a vital character exists between that case and the one now to be determined, the former must be regarded as decisive of the .case at bar. The claim of the learned counsel for the appellant, that, as the contract in case of alease is not required to be under seal, it may be regarded as a simple contract, upon which the principal may sue or be sued in his own name, and the seal may be rejected as surplusage, is also considered in the opinion in the case cited ; and, without indorsing the correctness of the cases relied upon, it is remarked that there are cases which hold this doctrine: “ but the principal’s interest in the contract appears upon its face, and he has received the benefit of performance by the other party, and has ratified and confirmed it by acts in pais.” It is, therefore, settled law, that in order to take a case out of the general rule, where the contract is one which is valid without a seal, and the seal is therefore of no account, it must appear that the contract was really made on behalf of the principal, from the instrument, and that the party derived benefit from and accepted and confirmed it by acts on his part. Within this rule, it remains to be considered whether the case at bar differs from that cited. An attempted distinction is sought to be maintained, for the reason that, in the case cited, Hurlburd, the agent, did not enter into the agreement to sell as agent, while here Brown signs as agent, which, it is claimed, is notice of the capacity in which he contracts. This, we think, is not sufficient, and to establish any real distinction it should appear of whom he was agent, and that the parties claiming were his principals. The plaintiffs not being named in the lease, and it not appearing that they had any interest therein, there is no more ground for claiming that Brown was their agent than that he was the agent of some stranger. The use of the word “agent” ‘has but little significance of itself, and, as the principals are not named, cannot be regarded as applying more to one person than to another. It did not take away from Brown’s obligation, because he is named as agent. The covenants are between the parties only who are named in the instrument, and no other parties. Any other interpretation would be a contravention of its obvious import. As we said in the case cited: “We find no authority for the proposition that a contract under seal may be turned into the simple contract of a party not in any way appearing on its face to be a party to or interested in it, on proof de hors the instrument that the nominal party was acting as the agent of another.” To render the principal liable, where there is a contract by deed, made by an attorney or agent, it must be made in the name of the principal (Huntington v. Knox, 7 Cush. 374; cited and approved in Briggs v. Partridge, supra). It would be going very far to hold that a distinction so trifling and unimportant would authorize a disregard of the decision cited, and thus virtually establish a new and different principle than the one which has been settled thereby. Another point is made, that the plaintiffs have ratified the contract and the defendant has been in possession and has paid the plaintiffs $150 on account of the rent. There is no evidence of any possession otherwise than under the lease which was executed by Brown, and the presumption is that it was in pursuance thereof and not under the plaintiffs. Nor does the proof show any payment of rent to the plaintiffs. The complaint alleges that no part has been paid except the sum of $150 ; and the proof shows that a balance was due, deducting this. It may, therefore, have been paid to Brown, and not to plaintiffs, and no presumption arises that it was to the plaintiffs. The case of Briggs v. Partridge (supra) disposes of the question considered; and if we follow that decision, there is no ground for claiming that the plaintiffs can maintain the action. It is also urged that the plaintiffs can maintain the action under the Code (§ 111) as the real parties in interest. One great object of this provision was to enable an assignee of a chose in action to sue in his own name, and it would be placing a construction upon this provision which Is, I think, unwarranted, to hold that a sealed instrument, executed by parties, belongs to another, without any transfer whatever by a party named therein. The parties whose signatures and seals are affixed to such an instrument, and who alone are named therein, are the real parties in interest, for they only are bound thereby. No right, therefore, exists in a stranger as against one of them, until there is * an assignment of the interest of such party. It is enough to say that the plaintiffs were not lawfully entitled to the rent, under the lease, nor the defendant bound to pay them therefor, until a.transfer of the lessor’s interest, or until some recognition of the plaintiffs’ title thereto by the defendant, which does not appear to have been made. For anything which appears, another suit may have been brought by Brown to recover the very same rent, and it is not clear what valid defense could be interposed to such an action. The waiver of further testimony on the trial, by the defendant, did not, we think, aid the plaintiffs’ case. It was accompanied by a distinct statement of the grounds upon which the defendant claimed that the plaintiffs had failed to make out a case, and that it was not claimed, on the part of the plaintiffs, that the premises described in the complaint were let or demised to the defendant otherwise than by the indenture of lease, or otherwise occupied by him. This left the case to be determined upon the lease as given in evidence, and did not warrant an inference that there was other evidence to establish the plaintiffs’ claim. It is urged that it is not essential to the plaintiffs’ right to recover that they should claim under the lease, but that, as the contract is not one required to be under seal or even in writing, there is no ground for claiming that the principal can be deprived of his remedy. It is a complete answer to this position to say that no such question was presented upon the trial, and the plaintiffs do not claim otherwise than under the lease. The complaint sets it up, and the evidence establishes its execution. Had the plaintiffs sued for use and occupation, claiming that Brown, as their agent, had acted without authority "in taking the lease in his own name, and that it really was made for the plaintiffs’ benefit, a different case would arise. But such is not the fact, but the claim of the plaintiffs to recover rent rests upon the lease entirely. Nor can it be claimed npon any valid ground that the question now presented is, whether the lease is a bar; for the apparent reason that the plaintiffs have made the lease the foundation of them right to recover and claim under it, and under no other different agreement. Upon the trial the plaintiffs proved by the agent, Brown, that he was authorized orally to demise the premises in the complaint mentioned, and that he did so by the instrument in question. It was also proved that the defendant entered upon the premises and occupied the same, and that the amount claimed was due thereon. At this stage of the case the defendant’s counsel claimed that the lease was not the act and deed of the plaintiffs, and that they had no cause of action arising out of the same against the defendant, no proof being offered, and it not being claimed that the premises were let otherwise than under the lease. The plaintiffs made no application to amend the pleadings, nor any claim that a recovery could be had otherwise than upon the lease. As no question was made upon the trial as to the authority of the agent to make the lease in the form it was executed, it cannot be urged upon this appeal that the question arises whether the agent could cut off the plaintiffs’ rights or remedy. In the absence of direct proof that the agent exceeded his authority, and without the presentation of such a question upon the trial, it is difficult to see upon what basis any such claim rests. Even if, in a suit brought for that purpose, where the complaint sets forth all the facts, the acts of the agent, when he exceeds his powers, may be disregarded, there is no principle which upholds the doctrine, and no authority for holding, that, when the action is brought upon the instrument itself, which is now alleged to have been unauthorized, and no proof given of any want of authority, nor any point made upon the trial on the subject, the plaintiff can recover. But it is sufficient to say that the plaintiffs did not seek relief upon any such ground, either in the complaint or upon the trial. If they had applied to amend the complaint, it would have rested with the court to determine whether the amendment proposed was proper, and upon what grounds or terms, if any, such an application should be granted. . Some authorities are cited for the purpose of upholding the position that the deed may be resorted to as evidence of the terms of the agreement, although it cannot be enforced as a specialty. Conceding that this may be done when an action is brought setting forth the want of authority, we think- that such is not the case where the complaint in the action is founded entirely upon the instrument, and the plaintiffs upon the trial claimed to recover solely by virtue thereof. A reference to some of the cases relied upon does not, I think, sustain the doctrine contended for, where no issue is made as to the authority of the agent. In Evans v. Wells (22 Wend. 324), the action was brought against the makers of a promissory note, and the question involved was as to the authority of an agent to execute a release in his own name to compromise the claim, and the competency of proof showing a ratification by parol and an acceptance of the fruits of the release, as well as the effect of the same. It is quite manifest that the testimony was competent, as this distinct issue was presented upon the trial; and while the decision of the court was entirely correct, it has no application to the case at bar. It may be added that the case is an authority against the plaintiffs, as it was held that the release was invalid as to the principal, and could only be made binding by a subsequent ratification. Haight v. Sahler (30 Barb. 218) holds that a corporation is liable upon its contract, although the agents have affixed their own. seals, when the instrument on its face purports to have been executed by the corporation, and their acts were ratified by the corporation, and it is apparent that there was no intention to bind the agents. This was decided upon the authority of Randall v. Van Vechten (19 Johns. 60), but neither of these cases affects the question now considered. The other cases cited do not aid the plaintiffs’ case, or present the characteristic features which distinguish the case at bar. We do not deem it necessary to examine them fully, and it is enough to say that none of them hold that, under circumstances like those here presented, the principal can recover. We find no error on the trial, and are of opinion that the judgment must be affirmed. The principle has long been settled by authority that to render an instrument of this nature, signed by an agent in his own name, binding on the principal, it must appear from the contract itself that it purports to be made by the principal, before it can be considered as obligatory upon the principal. See Squier v. Norris (1 Lans. 282), where the authorities are considered. This rule is applicable here, and it is too late, we think, to change a principle which has so long been acquiesced in. Church, Ch. J., Folgker, Andrews and Earl, JJ., concurred. Rapallo, J., read for reversal and a new trial, and Allen, J., concurred. Judgment affirmed with costs. Note on Oral Evidence to Show Real Party to Written Instrument. The question whether the true party to a written contract maj^-be shown, by oral evidence, to be different from the one named-or signing, is one upon which there is great conflict in the authorities; but certain clear distinctions reconcile much of the apparent hostility. Laying out of view sealed instruments (which are the subject of a stricter rule, stated in the text), and negotiable paper (which is the subject of a direct antagonism of the highest authorities), the general principle, well settled by modern authority in respect to unsealed and non-negotiable written contracts, is that oral evidence is admissible to show that one not named as a party was the real party, for the purpose of establishing the right of an apparent stranger to sue on the contract, or his liability to be sued; but not for the purpose of exonerating an apparent party, unless he be a public officer. To illustrate the application of the rule, if Principal A. employs Agent B. to sell goods, and Agent C., for Principal D., buys of Agent B., and the contract of sale is made and signed by Agents B. and C. in their own names as if they were principals, A., the principal seller, may sue on the contract, and prove, by parol, the agency for himself, to show his interest; and if his action or an action by B. is against the Principal D., the buyer, plaintiff may prove C.’s agency and D.’s interest, to show the liability of the latter. But if A. sues 0., or D. sues B., neither defendant can set up the agency to exonerate himself from all liability on the contract to which he put his name as if principal, unless he shows his principal was a government, foreign or domestic. I. As to simple, non-negotiable contracts, the general rule therefore is ; Parol evidence is admissible to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand, and charge with liability on the other, the unnamed principal; and this, whether the agreement be or be not required, by the statute of frauds, to be in writing. This does not contradict the writing. But parol evidence is not admissible to prove that the apparent principal is not liable. Higgins v. Senior, 8 Mees. & W. 834, 844 (the leading English case). 1. Action by the undisclosed principal. The leading American case is Ford v. Williams (21 How. U. S. 287), where this rule was applied for the purpose of sustaining an action by the undisclosed principal, the real seller, against the buyer, in an executory sale of goods. On an unsealed contract for carriage of merchandise, the employers, not named, may recover, on proof that the nominal party therein was their agent, and was undisclosed at the time the contract was made. N. J. Steam Nav. Co. v. Merchants’ Bank, 6 How. U. S. 844, 381; followed in 21 Id. 288. Parol evidence is competent in behalf of a plaintiff suing on an unsealed executory contract (other than negotiable paper), to show that defendant, although his name does not appear in the instrument, and was not disclosed, was the principal of the nominal party, and this, although the other contracting party supposed that the latter was acting for himself. This rule applies as well to contracts which are required to be in writing, as to those to which writing is not necessary. Briggs v. Partridge, 64 N. Y. 357; affi’g 39 Super. Ct. (J. & S.) 339, and cases cited (dictum). Upon an implied promise arising out of an unsealed contract the principal may recover, on parol evidence that it was made for his benefit, although the contract did not appear in the instrument. Huntington v. Knox, 7 Cush. 373. (Price of goods sold.) On an unsealed contract to deliver goods, made in his own name, by an agent, on behalf of the buyer, the buyer may maintain an action. Hubbert v. Borden, 6 Whart. 79, 91. (Buyer against seller.) In this case, the fact that plaintiffs were the real party in interest was disclosed at the time of the contract. Id. The fact that the defendant was informed, at the time of entering into the contract, that the other party to it executed it merely as agent for plaintiff, may be proved to sustain plaintiff’s action. Hubbert v. Borden, 6 Whart. (Penn.) 79, 91. Where the grounds above stated for applying the rule exist, it is not essential that it appear in the body of the instrument, or in the signature, that the nominal party was acting for another. Ford v. Williams (above). Contra, Auburn City Bank v. Leonard, 40 Barb. 119. Compare Goddard v. Mallory, 52 Id. 87; Fenly v. Stewart, 5 Sandf. 101; S. C., 10 N. Y. Leg. Obs. 40; Williams v. Christie, 4 Duer, 29. The fact that the seller was known to be merely an agent -at the time, and contracted in his individual name, does not prevent the buyer from recovering against the principal. Furman v. Loder, 11 Ad. & El. 589. If the party is informed that the person with whom he is dealing is merely an agent for another, and prefers to deal with the agent personally, on his own credit, he cannot afterward charge the principal. Ford v. Williams (above) (dictum). But it must appear that with full knowledge of the facts he elected to take the sole responsibility of the agent. The fact that he knew that he was dealing with an agent is not enough, if he was excusably ignorant that the signature was not such as to bind the principal,— as, for instance, where a man who could not read made a deposit in bank, and was given a certificate signed by an officer personally. Coleman v. First Nat. Bank of Elmira, 53 N. Y. 388, 394. The fact that the statute of frauds required the writing does not alter the rule. Ford v. Williams (above). 2. Action against the undisclosed, principal. On an unsealed contract the principal may be charged, although the statute of frauds requires a writing. In this case, the principal was known at the time the contract was made. Dykers v. Townsend, 24 N. Y. 57. (Seller against buyer of stocks.) Oral evidence to show an undisclosed agency, and for the purpose of charging the true principal, is competent, although the signature of the instrument was in the name of the alleged agent, “per ” a third person. Lerned v. Johns, 9 Allen, 419. The rule that an agent must sign his principal’s name, in order to bind the principal, is confined to sealed instruments. New England Marine Ins. Co. v. De Wolf, 8 Pick. 56. De Witt v. Walton (9 N. Y. 571) is often cited to the contrary. This was the case of a signature of a note with addition of “ agent for, &c.” It was held that it was not enough to show that the signer had power to bind defendant. It must be shown that he executed the power by a signature such as to bind him. But there was no question of parol evidence as to real party in interest. 3. Action against agent who contracted as apparent principal. For the purpose of exonerating the nominal party to a written instrument (even though not under seal, and not such as required to be in writing) parol evidence is ineffectual for the purpose of showing that he was an agent, and so understood to be by plaintiff, even where he signed describing himself as such. Orchard v. Bininger, 51 N. Y. 652. (Action on receipt by committee, to account for.) A party to a written contract who contracted in his own name, with nothing in the contract to indicate that he was acting for another, will not be permitted to prove by parol that he was, in fact, to the knowledge of the other party, acting as agent simply, and thus let in a claim for recoupment of damages suffered by them. Babbett v. Young, 51 N. Y. 238; affi’g 51 Barb. 466. The agent who signed as if personally liable, cannot contradict the writing by proving that he was contracting only as agent. Ford v. Williams (above). To exonerate the agent, it is not enough to show that he had power to bind the principal; he must show that he executed the power so as to bind him. Orchard v. Bininger, 51 N. Y. 652. (Signature of accountable receipt as “committee.”) The fact that he signs describing himself as trustee, does not exonerate him. Pumpelly v. Phelps, 40 N. Y. 59. II. Sealed instruments. Parol evidence is not competent in behalf of plaintiff suing on a sealed contract, to show that defendant, although not- in any way appearing on the face of the instrument to be a party to or interested in it, was the principal of the nominal party, in the absence of anything to show that defendant received its benefit or ratified it. Briggs v. Partridge, 64 N. Y. 357; affi’g 39 Super. Ct. (J. & S.) 339. (Vendor still in possession against purchaser.) In the case of a sealed agreement, where there is nothing in the «body of the instrument, or in the form of a party’s signature, to indicate that the -obligation thereby created was intended to be any other than a personal obligation on his part, parol evidence is inadmissible to show that the agreement was, in fact, the obligation of third persons, and that such party signed it as their agent, for the purpose of charging such alleged principal. Squier v. Norris, 1 Lans. 285. When a sealed contract which would have been valid without seal, is executed in such form that it is in law the contract of the agent, not that of the principal, but the interest of the latter appears on its face, and he has received its benefit, and acted in ratification of it, he may be charged in assumpsit on the promise contained in the instrument, which may be resorted to to ascertain the terms of the agreement. Briggs v. Partridge, 64 N. Y. 364, and cases cited (dictum). If a seal was actually affixed as that of the party signing, his principal cannot be charged on the covenant, without evidence of ratification, &c., although a seal was not necessary. Briggs v. Partridge (above). And if the covenant of such principals is essential to mutuality, to make a valid instrument, they cannot recover on it, in their action against the other contracting party, even though it clearly appear in the body of the instrument that the stipulations were intended to be with them. Townsend v. Hubbard, 4 Hill, 351. An action does not lie against a husband for an installment due by a contract to purchase land, signed by his wife, apparently as principal, upon oral evidence that she contracted as his agent. The statute requires that the party who is to be bound shall sign. Galusha v. Hitchcock, 29 Barb. 193. In this case it does not appear whether the contract was sealed or not. Fenly v. Stewart (5 Sandf. 101) is cited, which is contrary to the principle in other cases. An oral assignment would be valid except where the statute of frauds applies. Murray v. Bull’s Head Bank, 3 Daly, 364. As to the statute, see Kessel v. Albetis, 56 Barb. 363; 3 R. S. 134, §§ 6-9. Compare Kiersted v. Orange, &c. R. R. Co., 69 N. Y. 343, rev’g 1 Hun, 151; Gibson v. Warden, 14 Wall. 287; Russell v. Anable, 109 Mass. 73 ; S. C., 12 Am. R. 665 ; Mason v. Breslin, 9 Abb. Pr. N. S. 427. At the trial the allegation would have been amendable. Bedford v. Terhune, 30 N. Y. 453, affi’g 1 Daly, 471; Houghton v. Kœnig, 18 C. B. 238.