#### Thos Salter *against*Jos. Kirkbride and J. Hutchinson.

in CASE.

Action for not

Contract by theenname of principal. (a)

betwe'en contract and

Notice of appointment ox consign ©e.

THIS cause was tried at the *Essex*circuit, before the Justice, and a nonsuit directed. By the state of the case, as agreed upon between the parties, the folio wing facts appear.

The declaration sets out, that the defendants being engaged m the transportation business, undertook and promised to receive at *Washington,*in the county of *Middlesex,*from one hundred and fifty to two hundred tierces 0f sau anj t0 transport and deliver the same, in the city *' 17*of *Philadelphia,*to the order of the plaintiff, in as good order as they should receive the same, and that without delay, for the sum of 1 dollar, 87.5 cents per tierce ; that on the 12th of *November*1814, the plaintiff delivered to the defendants at *Washington,*one hundred and sixty-six tierces, to be transported and delivered under the agreement ; that the defendants did not transport and deliver the said 166.tierces; nor did they transport and deliver them in good order and without delay, although requested &c.; and that in consequence thereof, the plaintiff lost in the sale of said salt, large sums of money &c. to his damage 3800 dollars. The defendants pleaded that they did no.t undertake and promise in manner, &c.

At the trial, the plaintiff proved, that the defendants were engaged, in the summer and fall of 1814, in the transportation of goods from *Washington,*in the county of *Middlesex,*to the city of *Philadelphia,*and having a quantity of salt to transport, he applied, for the purpose) to one *Joseph Baldwin,*who appeared by advertisements in the public papers, to be the agent of defendants at *Washington. Baldwin*acknowledged himself to be their agent, and acted as such, and made a contract with the plaintiff to receive-and transport the salt for fifteen shill*255ings a tierce, be*fore other salt then lying upon their wharf; this was one shilling a tierce more than was at first spoken of between them, and was given to secure its immediate transportation. The paper signed by *Baldwin,*stating the contract, was proved and read in the following words: “We agree to receive at our wharf, one hundred and fifty to two hundred tierces of salt, from *Thomas Salter,*and to deliver the same to his order in *Philadelphia*(in good order as when received) without delay, freight through to *Philadelphia,*fifteen shillings each tierce. *Washington, November*12,1814. *Jos: Baldwin.”*On the 14th and 21st of *November,*plaintiff delivered at defendants’ wharf, one hundred and sixty-six tierces of salt and one barrel of fruit; receipts for some of which, were given by *Baldwin,*and for others by *John Henry,*a clerk in defendants’ store at that place. Teams were almost daily carrying salt and other goods from *Washington*to *Philadelphia,*during the latter part of the month of *November,*in that year, although the roads were extremely bad, and the price of teams higher than in the early part of the fall. Three days were however sufficient, during the bad roads, for teams to reach the *Delaware,*unless delayed by accident; and two tides to reach *Philadelphia,*after the boat started. *Baldwin*sent on other salt, after that of plaintiff was delivered to him, and he did not put it in a store-house, but left it upon the wharf. The plaintiff being informed by his agent in *Philadelphia,*that the salt for which he had inquired several times, had not arrived, sent, on the 29th of *November,*and twice afterwards, to inquire why it had not been sent, and *Baldwin*at one time said, that an agent of defendants’ in *New-York,*had made a contract to send on a large quantity in fifteen days, and they must send that first. At the time this reason was given, teams were loading with salt at the wharf. Plaintiff’s salt arrived in *Philadelphia*in small quantities and in sloops, which contained large quantities for other persons. In *November,*salt sold briskly; in *December*large quantities had arrived, and sales were dull. On the 21st *November,*the price current was 3 dollars; on the 24th, 2 dollars, 80 cents; on the 28tb, 2 dollars, 30 cents; on the 6tli *December,*eight *256tierces of plaintiff’s salt arrived, and then the price was 2 40 cents; on the 12th, thirty-six arrived, and the price was 2 dollars, 35 cents; on the 20th and 21st, fifty-nine tierces arrived, and the price was 2 dollars, 10 cents; on the 26th, sixty-two tierces, and *lhe price 2 dollars. The-plaintiff also proved, that agreements, in the form of the one in this case, were usually made, and the practice was, to notify an agent in *Philadelphia*to receive the goods; but it was not customary to give notice to the contractors at *Washington,*who the agent was, before the goods were sent. Each transporting company had a store-house or ware-house in *Philadelphia,*and the goods were deposited there, and there called for, by the agent or consignee. The plaintiff also read in evidence, the record of a judgment, in which the defendants had recovered from the plaintiff, the amount of the freight of this salt; and the defendant admitted that that judgment, with the costs, had been paid.

After giving evidence of the foregoing state of facts, the plaintiff rested, and the defendants moved for a non-suit on the three following grounds.

1. That the contract was made by an agent, in his name as agent, whereas it ought to have been in the name of the principal.

2. That there was a variance between the contract set out in the declaration and the one proved ; the contract proved, was for fifteen shillings a tierce, and the one alleged was for 1 dollar 87.5 cents, a tierce.

3. That it was incumbent on the plaintiff to have notified the defendants, who his agent or consignee in *Philadelphia*was, before they were bound to transport the salt there, and that such notice should be proved before the action could be maintained, and there being no proof of such notice, the plaintiff ought to be nonsuited.

The plaintiff then tendered himself ready to shew, that fifteen shillings, and 1 dollar, 87.5 cents, were the same sum,, in the common understanding and the common transactions of the country where the contract was made, and were so understood by the persons making it.

After argument, the Chief Justice directed a nonsuit for the *third*reason.

*257Upon the coining in of the *postea,*a rule was entered for setting aside the nonsuit, and granting a new trial. This rule presented the same reasons which had been the subjects of consideration at the circuit. Upon reading the case agreed upon, the Chief Justice remarked ; that he was not satisfied with that part of it which related to the necessity of appointing an agent oi consignee in *Philadelphia*and notifying the defendants thereof; that it was by no means, according to his apprehension of the evidence, relating to that part of the contract, and the understanding of the parties. But as the case had been agreed upon, and the parties were willing to rely upon it, the court heard the argument.

Mr. *Gheiwood*for plaintiff,

in support of the rule, contended. 1. Where an agent is appointed under seal, and the agreement which he makes is under seal, he must use the name of his principal; and the reason is, that he uses his *seal.*1 *Ld. Ray.*101. But in no other case is he required to use his principal’s name; a receipt by agent alone, will bind. 3 71 *R.*452.

2. There is here, in reality no variance. The 1 dollar, 87.5 cents, in the declaration, and the fifteen shillings, in the contract, are precisely the same, both in the common understanding and the common currency of the place where the contract was made. It is such a difference as is susceptible of explanation by proof, and can, under no circumstances, be fatal to the plaintiff’s action. *Viner,*title *Variance.*2 *Salk.*660. 2 *Sir.*1155.

3. The delay in the transportation, of which the plaintiff complains, was not induced by his not appointing an agent or consignee in *Philadelphia,*and informing the defendants of it. The evidence shews that they neither expected nor required to be informed of such appointment. The real cause of the delay, was the more beneficial contract which they had made in *New- York,*and for which the execution of the plaintiff’s was postponed. Nor was it at all necessary that a consignee should be appointed. The contract must be construed according to the understanding of the narties, and the particular course of the trade in which they were engaged. It is *258manifest that neither of them acted on the presumption, such appointment and notice was necessary; and in this trade, the transporters always deposited the goods in their own ware-house. So ought these defendants to have done. They might have completed the transportation on their part, without knowing who the plaintiff’s consignee was. The fact, too, that they have recovered the freight, is ample proof that they considered themselves bound, and were bound to carry the salt, without information as to the consignee.

** Attorney .General*and *Halsey,*

for defendants, in answer. Although the judge at the circuit, directed the nonsuit upon only one of the reasons urged by the counsel of the defendants, yet the whole are open for consideration, and if the court can be satisfied that either is sufficient, the nonsuit must be sustained. Upon the first point it is to be remarked, that the declaration sets out a special contract between the parties themselves, The proof exhibited in support of it, is the writing signed, not by the defendants, but by *Joseph Baldwin.*Now who is he ? Plow has he the authority to make a contract, binding upon the defendants ? This authority ought to appear; it should be shewn at the time of making the contract, and in the contract itself, that he was their agent. 1 *Com. Dig.*645. He ought to have acted in their name, as their attorney, or they will not be bound. If a person performs an act, or makes a contract in his own name and right, he shall not, when sued upon it, be permitted to shew that he acted as agent. He must shew it at the time. 1 *Bur.*167. 9 *Coke,*76. 1 *Com. Dig.*645. 2 *Str.*955. The distinction, taken as to sealed instruments, is incorrect. Wherever the agent acts as the representative of the principal, it should so appear; as in making bills, &c. Chit. 31.

2. The proof must be according to the contract charged. There must be no variance between the count and the proof. The currency of this state is established by law, and perfectly well known. By it, fifteen shillings are not the same as 1 dollar, 87.5 cents; but the same as two dollars. The currency of *New- York,*by which the plain*259tilf would explain and govern this contract, is unknown here. To apply to the common understanding of the people, where this contract was made, in opposition to the settled law of the state, is an uncertain, unsafe, and illegal mode of construction. A party must state his contract truly and in its words, not according to its import, as he may choose to construe it. There is here then a variance between the declaration and the writing, which is substantial, not to be explained, and must prove fatal. 1 *Chit.*304 1 *Esp.*262. *Carth.*204 *Doug.*665. 1 *Esp. Ca.*273. 4 *T. R*314. *Bull.*107. 2 *Saun.*291.

3. The fair construction of this contract, is, that the salt shall be delivered safely in *Philadelphia,*subject to the order of the plaintiff. This order is an essential part of it, it must be averred and proved. Here the plaintiff has set out with precision of date, *&c. a notice and request; and being laid they should be proved. It should have been shewn that the plaintiff, or his authorized agent, was in *Philadelphia*ready to receive, and that defendants were apprized of the fact. His proof failed, and the nonsuit was correctly awarded. 5 *Com. Dig.*title *Plead. C.*69.

*Ilornbloiuer*and *Chetwood*in reply.

1. The cases relied upon to shew that the character of the agent must appear upon the face of the contract, are all of a-ttornies in fact, appointed under seal, and executing "writings, having the character and validity of sealed instruments. They must use the name of their principal. This is so in making bills of exchange and promissory notes; and the reason is obvious. They are negotiable and are circulated on the responsibility of the drawers and endorsers-They are the contracts themselves, and importing a consideration, do not require it to be shewn. *Com.*title *Agent.*2 *Dali.*300. The present is not at all of this character. It is not the contract, but the evidence. Besides, by the recovery of freight the defendants have admitted *Baldwin’s*agency, and cannot now gainsay it.

2. This writing is not conclusive as to the contract. The plaintiff could have proved that the fifteen shillings were *New-York*currency, so that there was *in fact*no variance.

*2603. If plaintiff was bound to give notice of the appointment of a consignee, it was a matter of fact for the jury ; and there was abundant evidence from which they might shave inferred it: the plaintiff sending three times to see why the salt was not sent, and the answers given to his inquiries ; the carrying and delivery to *Crowd;*the record of recovery for the freight, are sufficient for this purpose; but no order was necessary, this not being the course of the trade. 2 *Com.*294. These are all, especially the two first technical objections, and require a strictness, against which courts in modern times have strongly leaned. They will even permit a variance to be amended and the party to proceed. 2 *Str.*786.

*The Court*were unanimously in favour of setting aside the nonsuit and granting a new trial.

(a)

*Shotwell vs. McKown, 2 South. 828. Stephens vs. Bacon, 2 Hal. 1. Kean vs. Davis, Spen. 425.*Reversed on appeal *1 Zab. 683. Bay vs. Cook, 2 Zab. 343. Booth vs. Wonderly, 7 Vr. 255.*

Southard J.

remarked. That the writing upon which the difficulty was supposed to arise, under the two first heads of the argument, was *mere evidence*of the contract between the parties, *and not of that class of written instruments which must stand by themselves and cannot be explained and varied. It was part only of that evidence, by which the contract was to be established, and was the subject of explanation on both sides. A great portion of the other evidence was properly in illustration of this. Now it is a large call upon the court to induce it to say, that the character of agent must appear on every piece of written evidence by which the contract is proved. This character may be shewn by other means, so as to bind his principal. Thus also, that part which relates to the price was subject to explanation, and although there may seem to be a variance, yet if one really exist, the plaintiff ought to have been allowed to shew, that it was in appearance only. This objection indeed is opposed to the admission of the paper in evidence, but furnishes no reason why the jury should not pass upon it, after it was admitted.

Upon the third reason, I would remark, that I can see no necessity to notify the defendants of the appointment of a consignee. The words of the writing, and the con*261tract as proved, do not necessarily require it. They were to be understood and construed according to the of the trade, and that abundantly shews, that this was never done, and was not necessary to enable the fendants to perform their parts. I think also, if it were necessary that there was such evidence of the appointment, as ought, under proper instructions from the court, to have been submitted to the consideration of the jury.

Rule absolute.

It was suggested that a question might well be raised whether the plaintiff when sued for the freight, ought not to have taken advantage of, and shewn the failure of the defendants; and whether, having neglected to do it, he can now maintain this action. But this question not being presented by the reasons or the argument, the court did not consider it.

On

 a second trial verdict was rendered for defendants, see *Den vs. Morris, 3 Hal. 215.*