In view of the right of action by or against the principal which exists even though the agent is named as the contracting party in the writing, it is only where the agent seeks to maintain a personal suit, or where it is sought to hold him personally liable that it is likely to be important to determine which is the actual party to a simple contract. If the contract is under seal the importance is greater.
By the rule of the Common Law none but parties to sealed instruments could have rights or be subject to liabilities thereunder. This rule obviously involves the consequences that a principal who is not, on a proper construction of a sealed instrument, named it in as a party, is not liable upon it, nor can he maintain an action on it.71
Not only must the principal be named in the document, but to become liable, it is essential both that he should be expressed as the covenantor and also that the instrument should be sealed with his seal." In many instances the execution of an instrument indicates that the signer is also the covenantor, as land Hotel Co. v. Lowe Furniture Co., 73 Mo. App. 136; Basnight p. Southern, etc., Co., 148 N. C. 350, 62 S. E. 420; Riter v. Sun Foundry Co., 10 Utah, 140, 37 Pac. 257; Gavazza v. Plummer, 53 Wash. 14, 101 Pac. 370.
71Pickering's Claim, L. R. 6 Ch. 525; Whitney v. Wyman, 101 U. 8. 392, 395, 26 L. Ed. 1050; Badger Silver Mining Co. v. Drake, 88 Fed. 48, 58 V. 8. App. 129, 31 C. C. A. 378; Gibson v. Victor Talking Mach. Co., 232 Fed. 226; Hall v. Cockrell, 23 Ala. 607; Walsh v. Murphy, 167 111. 223, 47 N. E. 354; Huntington v. Knox, 7 Cush. 371, 374; New England Co. v. Rockport Co., 149 Mass. 381, 21 N. E. 947; Congress Construction Co. v. Worcester Brewing Co., 182 Mass. 365, 65 N. E. 792; Ferris v. Snow, 124 Mich. 559, S3 N. W. 374, 130 Mich. 264, 90 N. W. 860; Esper v. Miller, 131 Mich. 334, 91 N. W. 613; Mahoney v. McLean, 26 Minn. 415, 4 N. W. 784; Borcheriing v. Kats, 37 N. J. Eq. 150;
Taft v. Brewster, 9 Johns. 334, 6 Am. Dec 280; Briggs v. Partridge, 64 N. T. 357, 21 Am. Rep. 617; Tuthili p. Wilson. 90 N. Y. 423; Elliott v. Brady, 192 N. Y. 221, 85 N. E. 69, 18 L. R. A. (N. S.) 600, 127 Am. St. 898; Weber v. Columbia Amusement Co., 160 N. Y. App. D. 835,146 N. Y. S. 63; Bryson p. Lucas, 84 N. C. 680, 37 Am. Rep. 634; Quigley v. DeHaas, 82 Pa. St. 267; Steele p. McElroy, 1 Sneed, 341. Cf. Moore p. Granby Mining, etc., Co., 80 Mo. 86; O'Brien v. Clement, 160 N. Y. S. 975; Whitehead v. Reddiok, 12 Ired. L. 95; Kempner v. Dillard, 100 Tex. 505, 101 S. W. 437, 123 Am. St. 822; Stowell v. Eldred, 39 Wis. 614.
72Moore, pl. 191, p. 70. Philadelphia, etc., R. Co. v. Howard, 13 How. 307, 337, 14 L. Ed. 157; Whitney p. Wyman, 101 U. 8. 392, 395, 25 L. Ed. 1050; Northwestern Distilling Co. v. Brant, 69 111. 668, 18 Am. Rep. 631; Townsend p. Corning, 23 Wend. 436.
if the instrument reads "I covenant," and is signed, "A. B." But the covenantor may be separately named in the body of the instrument. The proper way in which a sealed contract should be made on behalf of a principal is by stating the covenant as the principal's and the execution of the deed as his. But though it is desirable for the agent to indicate that the principal's name has been signed by the agent, and not by the principal personally, it is legally a sufficient execution to bind the principal if the agent, without disclosing in the body of the instrument or in the signature that the principal was not acting personally signs the name of the principal.73 It is also immaterial by what words the instrument indicates that the execution is the act of the principal - not of the agent. A contract signed "M. W." for "J. B." is the contract of J. B. as much as if signed J. B. by M. W;74 but it is insufficient to establish a covenant as the principal's where the covenant is stated to be that of "A. B. Agent," and this has been so held even though the instrument describes the authority enabling the agent to execute the instrument. It is the personal covenant of the agent.75 The addition of the word "Agent" even principal will become liable on a contract implied in fact if he- take advantage of the covenant and treat it as his own, unless the contract is of such a nature that a seal is requisite to its validity.80 And indeed if the principal authorized the making of the contract and a seal is not essential to its validity, and the court finds that the intent was that the contract should be that of the principal, the instrument if it states a promise of the principal may take effect as a simple contract of the principal though signed and sealed by the agent individually.81 Indeed some cases have gone further, following the analogy of cases which hold that an agent, who has not authority under seal enabling him to enter into a sealed contract for his principal, may bind the principal by a simple contract, when he attempts to enter into a sealed contract on his behalf.82 They have held that an undisclosed principal may be charged on a contract entered into by his agent, though the contract is under seal, if the seal was not necessary for the existence of the contract.83 The contrary view, however, as to this last point has been strongly taken in New York,84 and it seems with reason. Unlike the cases where the agent had purported to enter into a sealed contract for his principal but without the requisite authority, there is here a valid contract under seal. It seems difficult to find in addition to this contract under seal of the agent a simple contract also on which to hold the undisclosed principal. Nor can a sealed instrument when dishonored be disregarded and suit brought on principles of quasi-contract, against the principal for the value of the consideration received by him.85 Where seals
73 Wilks v. Back, 2 East, 142; Forsyth V. Day, 41 Me. 382; Berkey v. Judd, 22 Minn. 287; Devinney v. Reynolds, 1 W. & 8. 328. The statement in Wood p. Goodridge, 6 Cush. 117, 62 Am. Dec. 771, that it should appear on the face of the instrument that it was executed by an agent and by virtue of authority delegated to him, cannot be supported.
74 Wilks v. Back, 2 East, 142; Sun Printing &. Publishing Assoc, v. Moore, 183 U. S. 642, 648, 22 S. Ct. Rep. 240, 46 L. Ed. 366, aff'g, 101 fed. 591, 41 C. C. A. 506; Northwestern Distilling Co. v. Brant; 69 111. 658, 660, 18 Am. Rep. 631; Bradirtreet v. Baker, 14 R. I. 546; Mussey v. Scott, 7 Cush. 216, 64 Am. Dec. 719.
75Lutz v. Linthicum, 8 Pet. 165, 8 L. Ed. 904; Jones v. Morris, 61 Ala. 518; Fisher v. Salmon, 1 Cal. 413, 64 Am. Dec. 297; Doming v. Bullitt, 1 Blackf. 241; Banks v. Sharp, 6 J. J. Marsh. 180;
Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 66; Tippets v. Walker, 4 Mass. 695; Fullam v. West Brookfield, 9 Allen, 1; Endsley v. Strock, 60 Mo. 608; Dayton v. Warae, 43 N. J. L. 659; Taft v. Brewster, 9 Johns. 334, 6 Am. Dec. 280; White v. Skinner, 13 Johns. 307, 7 Am. Dec. 381; Kiersted v. Orange Ac. R. Co., 69 N. Y. 343,25 Am. Rep. 199; Locke v. Alexander, 2 Hawks, 155, 11 Am. Deo. 750; Bryson v. Lucas, 84 N. C. 680, 37 Am. Rep. 634; Quigley v. DeHaas, 82 Pa. St. 267; Roberts v. Button, 14 Vt. 195, 204; Gear v. Shaw, 1 Pinney, 60S, 615; North v. Hennetaerry, 44 Wis. 306. See also White v. Cuyler, 6 T. R. 176; Stinch-comb v. Marsh, 15 Gratt. 202; Cullen v, Nickereon, 10 D. Can. C. P. 549. In Welsh v. Usher, 2 Hill Ch. (S. C.) 167, 29 Am. Dec 63, it was held that though a bill of sale of the principal's ship, executed in the agent's name was wholly inoperative at law, it amounted though followed by the name of the principal, is regarded as mere descriptio personŠ as if it were "A. B., Farmer," or, "A. B. Gentleman." If, however, the covenant in the body of the deed is clearly expressed to be that of the principal, a signature, as agent or as officer of a corporation will be sufficient to indicate that the seal is that of the principal.76 If the agent sign individually such a covenant of the principal, without words indicating his agency, though the covenant is not that of the principal, the agent also cannot be held liable as a covenantor, since the covenant in the body of the instrument is that of the principal.77 Similar principles are applicable to rights under sealed instruments as to duties. The principal cannot sue upon a covenant though made with reference to his business and for his benefit unless he is the covenantee, and if the agent is named as the covenantee, though he is stated in the covenant to be the agent of a named principal, these words are mere descriptio personŠ.78 Where the form of the instrument does not accurately express the intention of the parties the possibility of equitable reformation should be considered.79