Delaware, Lackawanna & Western Railroad v. Thayer

Waterman, J. The Metropolitan Rational Bank, for whose use this proceeding was, contends that Story & Co., in making the arrangements for rebates with the railroad company, acted as the agents of Thayer, and that he, although unknown to the railroad, had aright, as such principal, to at any time come forward and claim the benefit of the transaction. The right of a principal to come forward and take the benefit of a contract made by his agent in the name of the agent can not be questioned. If Thayer was, as the Superior Court has found, the principal, and Story & Co., notwithstanding their insistance that the contract was theirs alone, were really in this matter acting as his agents, then he had a right to reveal his position to the defendant and demand" that it pay to him whatever was’, under the arrangement, due. The principal in such case steps into the shoes of the agent and assumes all the burdens to which the agent is subject; the rights of the other contracting party can not be and are not affected by the disclosure of the before unknown principal. In the present case a dispute exists between the alleged principal and the agent. Story & Co., whom the bank insists were the agents of Thayer, repudiate such position and declare that they, and they alone, were principals in the arrangements. The contracts as made were not for any particular shipper or shipment; they wrere for round numbers of cars divided among the customers of Story & Co. as they saw fit. Manifestly, Thayer never authorized Story & Co. to make such a contract as this; he had no interest in the shipment.of grain to Story & Co. by other parties; and there is nothing in the record to show that he ever had or felt any interest in the freight upon any grain save his own. The contract, which an unknown principal may assume and claim the benefit of, is the contract made, and not a part of it. Mechem on Agency, Sec. 773; Rosevelt v. Doherty, 129 Mass. 301. We do not agree with counsel for appellee in their suggestion that it does not appear that shipments were made by other parties than Thayer. The witnesses called by appellee speak repeatedly of rebates due upon grain sent by other shippers, and the railroad officials speak of the trouble of separating the rebates on the grain shipped by Thayer from that forwarded by others. The arrangement as stated by the witnesses for appellee was, in round numbers, for the benefit of Story & Co. Under such agreement, the defendant wrould not be bound to pay rebates until the full number of cars contracted for had been used in shipments. While it may be the case that the defendant did not insist upon such course, yet such was its right, and the demand against it for rebates can not be split up into as many claims as there were cars or shippers. The record in this case fails to disclose that Thayer ever shipped to Story & Co. cars in accordance with any contract they made, or ever was entitled to the entire amount due under any contract. Story & Co. in the first instance paid the full freight to the defendant; for such advance they had as factors a claim upon the rebates, having priority over that of Thayer even though he should be considered the principal in the contract as to rebates; if Story & Co. had, prior to the assignment by him, paid such rebate to Thayer, then Thayer had, when he made the assignment, no claim to assign; whether principal or not, he would not be entitled to receive from his agent the full amount due and then recover the same thing from the defendant. When the principal discloses himself, he comes to light charged with all that he has received from his agent, as well as with the acts of the agent with third parties. It did not appear in this case that as between Story .& Co. and Thayer, anything was due to Thayer, while there was evidence tending to show that but a small amount, if any-, thing, was due. We therefore think that the court should, under the evidence as to the manner in which the payments of freight and rebates were made and the accounts kept, have held as requested in the seventh and eighth propositions of law requested of it by appellant. . The judgment of the court below is reversed and the cause remanded. Reversed and remanded.