Nicoll v. . Burke

Mim.ee, J. The plaintiffs in their complaint claim to recover for the rent of certain premises therein described, by virtue of a lease made by their agents, William and E. A. Cruikshank, for the term of one year from the first day of May, 1873. We think that the written lease and indorsements on the same, signed by the defendant, of a renewal thereof from year to year, including the last year, to recover a portion of the rent for which this action was brought, were competent evidence to sustain the complaint. The lease purports to have been made by the lessors named therein, who are stated to be “agents, as landlords,” with the defendant in 1873, and renewals from year to year, including the year 1876, are indorsed upon the same. The lease, as well as the indorsements arc signed by the defendant only and are not under seal. There was evidently a counterpart to the instrument originally signed by the defendant, but it is not produced and the proof does not show by whom it was signed, if it existed. It appears, however, that the Cruikshanks were agents of the testator who owned the premises; that one Hicoll had charge of the property for the executors in 1876 ; and that the last renewal of the lease was made under his direction by one Augustus Cruikshank, who was the successor of William and E. A. Cruikshank, who were named in the lease, as already stated. . The lease not being under seal, it was entirely competent evidence as a written parol executory contract, entered into by an agent in his own name within his authority, although the name of the principal does not appear in the instrument. The principle is well settled, that if the agent possesses due authority to make a written contract not under seal and he makes it in his own name, whether he describes himself .as agent or not, or whether the principal be known or unknown, his principal may be made liable and will be entitled to sue thereon in all *584 cases, and the instrument may be resorted to for the purpose of ascertaining the terms of the agreement. This doctrine is fully sustained in Briggs v. Partridge (64 N. Y., 357, 362, 364), where the authorities bearing on the subject arc cited and considered. (See also Story on Agency, § 160.) A different rule prevails as to sealed instruments; but where the contract is in writing or by parol, not under seal in the name of the agent and within his authority, the principal can enforce the same and is liable thereon. The contract for the letting of the premises in question from year to year was not required to be hi writing. The defendant understood that the agents were acting for others and were liable to the principals. The particular phraseology used in the lease describing the agents “ as landlords ” does not change the rule or prevent its application to contracts not under seal. In fact, the counterpart of the lease not being produced, and it being no doubt hi the defendant’s possession, and it not appearing in what manner it was executed by the lessors, and the proof showing that the plaintiffs were the landlords and entitled to the rents, it was reasonable to assume that it was executed by their agents for their benefit and on their account. The cases cited by the learned counsel for the defendant to establish the doctrine that the lease, as it was, could only be enforced by the agents, do not sustain the principle contended for. Most of them relate to instruments under seal and none of them hold that the principal cannot recover where the contract is made by the agent within his authority, either written or parol, when not under seal. It is also insisted that it was error to exclude the evidence offered as to the bad condition of the premises at the time the defendant surrendered them. The original lease was in writing, and it provided that the tenant should keep the premises generally in good order and repair. This was renewed in 1876, with the same covenants and conditions, except as to the amount of the rent. The writing merged nil prior parol conversations, and there is no ground for *585 claiming that the prior verbal arrangement was a part of the contract. The evidence offered was therefore properly excluded. The first and second requests to charge covered too much ground and were properly refused. The third request, that the receipts showed that the rent was paid in full to February 1,1877, should have been granted. The judge also erred in charging as a matter of law that they should find for the plaintiffs the full amount of rent. The receipts showed, and there was a verbal agreement that the rent for the future should be reduced $200, and this was a modification of an executory parol contract which was valid and lawful. Both parties acted under this arrangement, and it Avas executed and carried into effect. The defendant occupied the premises and the plaintiffs received the rent, according to the altered terms of the contract. We think this Avas obligatory.. It is no answer to say that the receipt in full was not conclusive, or that the rent was not promptly paid, for the contract was executed. For the errors referred to, the judgment must be reversed and a new trial granted, with costs to abide the event, unless the plaintiffs stipulate to deduct from the judgment fifty dollars, with interest from August 1, 1876 ; fifty dollars, with interest from November 1, 1876 ; fifty dollars, Avith interest from February 1, 1877 ; and fifty dollars, with interest from May 1, 1877 ; in which case judgment is affirmed, without costs of the appeal to either party in this court. All concur. Judgment accordingly.