Where there is no question about the authority of a broker to enter into a formal contract for his principal, as where the broker has a power of attorney, and is therefore the attorney in fact of the principal as well as the broker in the transaction, or where he has other written authority to sign the contract, or where his authority to sign a contract, though oral, is not disputed, certain formalities should be observed. The contract should be made in the name of the principal, so that there can be no question that it is the principal who contracts, and not the agent. As to signature, "It is immaterial whether the agent signs his name to the instrument before or after the name of the principal. It is sufficient if the agent executes the paper in the name of the principal and not in his own name." 34 The agent may therefore sign "John Smith, as Agent for William Brown," or "William Brown, by John Smith, Agent," and the effect is the same in either case.
An authority to make a contract for another is not sufficient to authorize its cancellation or surrender.35
Where a contract is signed by agents only in their own names and there is no seal, an action can be maintained by and against the principals for whom these agents signed.36 But if the contract is under seal, and the name of the principal is not disclosed, it can be enforced only against the parties to the instrument.37 As has been said before, a contract for the sale of real estate in some jurisdictions need not be under seal.38
³³ See Sec. 272-276 infra.
34 Worrall v. Mnnn. 5 N. T. 244 (1851).
35 Stllwell v. Mutual Life Co., 72 N. T. 391, 392 (1878).
Where an agent is appointed orally and, without disclosing his agency, makes a contract under seal in his own name for the purchase of real estate, the contract cannot be enforced against the principal afterward discovered.39 On the other hand, the principal cannot sue on a sealed instrument made by an agent in his own name, even though the latter adds the word "agent" after his name, if he does not disclose for whom he is agent.40 And the same rule applies where the contract was made by an officer of a corporation, as purchaser, and he designates himself as "president" and signs his name and adds thereto, "President of Buffalo Catholic Institute." 41 In this case it was held that such additions are merely descriptio persona and do not make the contract the contract of the corporation.
36 Pelletreau v. Brennan, 113 App. Div. 806 (N. Y. 1906).
37 Van Allen v. Peabody, 112 App. Div. 57 (N. T. 1906). Sec also Henrieus v. Englert, 137 N. Y. 488 (1893); Loeb v. Barris, 50 N. J. L. 384 (1888); Haley V. Boston Belting Co.. 140 Mass. 74 (1885).
38 See Sec. 32 supra, also Sec. 354 infra.
39 Briggs v. Partridge, 64 N. Y. 357 (1876).
4o Schaefer v. Henkel, 75 N. Y. 378 (1878).
41 Buffalo Catholic Institute v. Bitter, 87 N. Y. 250 (1882).