Sencerbox v. McGrade

[488] By the Court — Atwateb, J. — The Plaintiff in Error brought suit to recover the value of certain furs, of wbicb he claimed to be owner on the 3d day of May, 1861, alleging the same to have been wrongfully taken by the Defendant, and converted to his own use. The answer denied the ownership of the Plaintiff, alleging the property belonged to one Burdick, and justified the taking under an execution against Burdick. A jury trial was waived, and the cause tried by the Court, and judgment rendered for the Defendant. The Plaintiff’ brings the cause to this Court by writ of error. No evidence was introduced on the part of. the Defendant, the motion for judgment having been made on the pleadings, and evidence introduced by the Plaintiff. That evidence was-brief, as stated in the paper book, and the material x>art as follows : “ The Plaintiff produced Jarvis W. Sencerbox as a witness on behalf of said Plaintiff, who, being duly sworn, testified as follows, to-wit: The Plaintiff is my brother ; I xourcliased of Burdick the undivided half of the furs in Mr. Perrier’s possession on the 3d day of May, 1861; exhibited bill of sale, of which the following is a copy ; ‘Received, Shako]3ee, May 3, 1861, from J. ~W. Sencerbox, agent for J. Gr. Sencerbox, of the city of Brooklyn, in the State of New York, the sum of fifty dollars on account of furs now in the possession of James Perrier, the undivided half of which I have this day sold to the said J. W. Sencer-box, agent for the said J. Gr. Sencerbox, at the following prices, viz.: No. 1 mink, one 50-100 dollars ; No. 1 Otter, four dollars ; muskrat, twelve cents; red fox, one dollar 25-100 ; prairie wolf, seventy-five cents; coon, fifty cents; inferior grades at proportionate rates ; and in consideration of the payment as aforesaid, I have delivered unto the said J. "W. Sen-cerbox the undivided half of said furs, now in x>ossession of said Perrier, to take possession of or disp>ose of as he, the said J. W. Sencerbox, may desire. Y. H. BuRDíoic.’ ” The witness was then asked this question : “ In what capacity were you acting in jturchasing the property?” which was objected to on the ground that it tended to vary and [489] change the written contract. The objection was overruled, and the witness answered, “ I was acting as agent for my brother.” The witness was also asked, “ with whose money the payment was made?” which was also objected to by Defendant, the objection overruled, and the witness answered, “I paid him a certificate of deposit on the Bank of Commonwealth, sent me by my brother; it was my brother’s money. I sent a written notice to Mr.' Ferrier by Mr. Burdick, on the day that I made the purchase., I know that Mr. Ferrier received the notice.” Notice produced and read in evidence as follows :• “ Shaeopee, May 8, 1861. “ Mr. James íerrier : Please retain in your possession the undivided half of the furs this day sold me by Y. H. Bur-dick, until otherwise directed by me. Yours truly, “ J. W. SeNCBRBOx.” • 'On cross examination the witness testified : “ I never saw the property myself. I took Mr. Burdick’s word for the property. I had no personal knowledge that he had any such property; I understood that the property was at Louisville about six miles from here. It was not ascertained at the time how many of number one, or oí a lower grade of fur there was at the time of the sale. I did not know how many mink skins there was at all. It had got to be ascertained after-wards how much of the' $50 was to apply on the mink ’ skins, but I expected there would be more than $50 worth. There were no prairie wolf skins at all. I did not know how many coon skins there were at the time. There was no understanding between Mr. Burdick and myself as to the price of the inferior grades of fur, further than that stated in the bill of sale. The number and quantity had got to be ascertained af-terwards. I supposed there was more fur, and Mr. Burdick said he supposed there was more at the time of sale.” There was some further testimony, but not materially changing the above, and no other as to the person to whom the sale was made, or as to the agency of J. W. Sencerbox. It will be observed, that J. W. Sencerbox testifies in the first instance that he purchased the furs of Burdick. The bill [490] of sale also introduced in evidence, by the plaintiff, shows that the furs were sold to J. W. Sencerbox, and delivered to him so far as any delivery is shown. It is true he is designated as “ agent for J. G. Sencerbox,” but this must be regarded as desorvptio persones, as the terms of the instrument are direct and positive that the sale was made to J. W. Sencerbox. "When an agent or attorney contracts on behalf of his principal, he must do so in the name of the principal, or the latter is not bound. When any one has authority to do an act, it should be done in the name of him who gives the authority, not in the name of the agent or attorney. 7 Cow., 453, 9 Cow. 76, 7; 10 Wend. R., 87; 20 Wend. 251; 24 Wend. 345; 7 Mass. 19, 8 id. 103; 6 Hill, 240. With reference to the instrument in writing signed by Burdick, which was introduced by the plaintiff in evidence, I do not think it was competent for the plaintiff to contradict or vary it by parol. It is obviously more than a simple receipt, and is more analogous to a contract of sale. It contains the names of the parties to the contract, the terms and conditions of sale, and attempts to make or show a delivery of the property. And though a mere receipt acknowledging payment of money may be varied or contradicted by parol, yet where it contains an agreement, condition or stipulation between the parties, it is in the nature of a contract, and is not liable to be varied by parol. 3 Cow. and Hill’s notes to Phil. on Sv. 383; 4 id. 582, and cases cited. At all events, the plaintiff must take the instrument as a whole, if at all, and cannot claim the benefit of apart, and reject such parts as he thinks prejudicial to his case. With the instrument remaining in evidence, it was improper to admit parol proof to show that the sale was to J. G. Sencerbox, the plaintiff, instead of to his brother. It will also be observed in connection with the consideration of the point, as to whom the furs were sold, (as disclosed by the written evidence,) that the notice served on Eerrier, by J. W. Sencerbox, speaks of the furs as “ this day sold me” by Burdick, without any reference to his capacity as agent. But there is still another objection to the plaintiff’s right of action, even though all the evidence had been properly [491] received. The plaintiff entirely fails to show that J. W. Sencerbox was in fact Ms agent in the purchase of these furs. All the testimony tending to prove such fact is in the answer to the two questions above cited, and taken under objection. Sencerbox testified that in making the purchase he acted as agent for his brother. Butpieither the declarations of a man nor his acts can be given in evidence to prove that he is the agent of another. 3 Cow. and Hill's notes to Phil, on Ev. 412, and cases cited. But the witness does not even state that he was actually the agent of J. G-. Sencerbox, ñor that he was ever employed by him, for the purpose of purchasing furs, for any other purpose, nor that he was furnished with money for such purpose. lie merely states that he “ was acting as agent tor his brother,” but non' constat, that he might have been so acting on his own assumption, and without any authority. So far as the testimony appears, there is no privity of contract between the plaintiff and Burdick, nor any right of action on the part of either as against the other, for breach of contract. No original authority from plaintiff is shown to his brother, nor any ratification of his acts, unless bringing suit be considered such, and no authority whatever is shown from plaintiff for commencing the action. We think the plaintiff fails in making title to the [property which is the subject of the action. This view of the case renders it unnecessary to examine the other points raised on the argument. The judgment below is affirmed.