#### JOHN WHITEHEAD *vs.*GILBERT POTTER.

Mutual promises constitute a good consideration for a contract.

In general a mere agent, who makes a contract in behalf of another, cannot maintain an action thereon in his own name, either at law or in equity.

But where the agent, who makes a contract, has a beneficial interest in its performance for commissions, &c. as in the case of a factor, a broker or auctioneer, or a captain of a ship for freight,' he may sustain an action in his own name, although the principal or owner might sue in *his*own name.

The consent of the principal or owner is not necessary to enable the agent, in those cases, to sue in his own name: it is implied from the nature of the agency.

Tho case of *Surlburt*v *Simpson,*3 Ired. 236, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at the Special Term, in January, 1844, his Honor Judge MaNLY presiding.

This was an action on the case, brought to recover damages for the failure of the defendant to fulfil an argreement to deliver certain lumber, specified in a writing signed ‘'Gilbert Potter,” of which the following is a copy, viz:

*258“Memorandum of Lumber for schooner Jane, Captain John Whitehead.

5in. I inch boards,

5 “ 1| inch boards,

3 *“*11 inch boards, -

3 *“*2 inch boards,

16 “ and from 2 to 4m. ft. of flooring or enough to fill up, at 16 dollars. All to be of the best quality, clear of sap, and other defects, knots, <fec., and from 25 to 32 ft. long, greater proportion, of latter length.

I will furnish the above order at 14 dollars.

(Signed) GILBERT POTTER.”

The proof was, that the Schooner Jane, owned in the West Indies and sailing for the benefit of her owners, came Into the port of Wilmington. The plaintiff, being the master thereof, consigned to P. K. Dickinson, a merchant of the latter place. Dickinson being absent from home, his agent, T. F. Gause, the superintendent of his saw mill, undertook to aid the master of the vessel in procuring such a lot of lumber as he wanted.. After some enquiry among the owners of saw mills in the place, and a failure to meet with any offer, which it was deemed advisable to accept, it was agreed between the master and Gause, as the agent of Dickinson, that the latter should furnish the lumber required. While this agreement was being fulfilled, the parties understood that the defendant had declared, that he would furnish the lumber on much more advantageous terms. Whereupon the master and Gause came to an understanding to try the defendant, and, if he'would furnish the lumber as reported, their agreement was to be cancelled. Gause then wrote the memorandum above set forth, and gave it to the plaintiff, who went to the defendant (Potter) and returned with it-signed by him. The vessel was then removed from Dickinson’s wharf to Potter’s, and neither Dickinson nor his agent Gause had any further connection with the transaction, except that Gause went with *259the plaintiff to a lawyer’s office, when the plaintiff took sel about the bringing of this action. After a few days, and when Potter, through his agent (a man by the name of Thurs-ton) was sawing lumbgr to fulfil his engagement, the plaintiff was taken to the yard and shewn a specimen of the lumber. This lumber was not according to the memorandum between the parties, but the plaintiff said, after rejecting some that was exhibited to him, that other portions with knots no larger than a twenty-five cent piece *“*would do.” Afterwards, upon a requisition on the part of the plaintiff that he might have the lumber delivered to him, as agreed, the defendant’s agent, who proved himself fully authorized for that purpose, went with the plaintiff into the yard, and offered to make a delivery; but the plaintiff refused to proceed, unless the defendant himself would come out and superintend it. In connection with this part of the case, the agent, Thurston, stated, that there was not lumber enough sarved, of the quality in the memorandum, to satisfy the same, but there was enough (he believed) of a quality equal to that, which the plaintiff had said “ would do,” as above stated, and he was then proceeding to saw. Afterwards, on the same day, the plaintiff made a demand of the defendant, that he rvould deliver him the lumber as agreed, and the defendant replied, that “the plaintiff had already bothered him so much, he intended to have nothing more to do with him.” It was further in proof that lumber, of the description specified in the memorandum, was worth from 25 to 30 dollars per thousand instead of 16, and that the vessel was detained at the wharf of the defendant, waiting for the performance of his engagement several days, and that from 7 to 8 dollars per diem was a customary demurrage.

The defendant’s counsel contended that, the plaintiff was not entitled to recover, because the paper writing exhibited was no evidence of any contract — that it was a mere proposition on the part of the defendant, containing no evidence of its acceptance by the plaintiff, and no consideration to support it, He further contended that there was no evidence, *260with whom *the*contract *was*made — that the *connection, in*^-fr-ich the words, “ Captain John Whitehead,” are inserted in the paper, shews they were used merely as a description of vessel, to which the lumber was to be furnished, being the eommon mode of stating the name of the master of the ■vessel to designate and distinguish her from any other vessel of the same name. He further insisted, that, as there was no evidence of an express contract between John Whitehead and the defendant, thé suit should have been brought in the name of the owner or owners of the vessel ; and that, if the suit could have been brought in the name of the agent, it should have been brought in the name of P. K. Dickinson, the consignee, who, for this business, was the agent of *the*owners, and «oí the captain. The defendant’s counsel further contended that the plaintiff could not recover, for that, according to the proof, the defendant made a tender of the lumber or an offer to deliver it, which the plaintiff refused. Further, that the plaintiff had altered the contract, by stating to the defendant’s agent that lumber of a different quality would answer, and the proof was, that, at the time of the tender, *the*defendant had ready to deliver a sufficiency of lumber in quantity and quality, such as the plaintiff had said would answer. And further, that the defendant was then ready and proffered to deliver, according to the usage of the place, the lumber required by the letter of the contract, even if there had been.no alteration: that there was no date to the paper, and no specified *time,*within which the lumber was to have been delivered, and, according to the usage of the place, he could not be required to deliver it all at one time; and it was in proof that he was then sawing to fill the order or bill. And finally, the defendant’s counsel contended, *that, if*entitled to recover at all, the plaintiff could claim nothing more than nominal damages.

The Court instructed the jury to inquire, *first,*whether there had been an engagement on the part of the defendant with the plaintiff to furnish to him the lumber contained in the bill or memorandum. In considering this point it'was *261proper for them not only to take into view the which of itself imported only a promise to furnish the lumber therein specified for the schooner Jane, but also all other testimony bearing on the point, such as the conduct and acts of the parties and their language when together — that no particular form of words was necessary to complete a bargain between two persons and to malee it binding upon both. If Whitehead, acting as the agent of the owners, and Potter agreed together, the latter _ to furnish and the former to receive at a stipulated price the lumber in question, it would constitute a contract obligatory on both parties, and such a contract might be sued upon by the agent in his own name. If this point were decided in favor of the plaintiff, it would then become necessary for the jury to inquire, in the *second*place, .whether the contract had been performed by the defendant — and if not, whether his failure was in consequence of a refusal on the part of the plaintiff to accept the lumber, when it was tendered to him. For if the defendant refused to fulfil his engagement, there being no misconduct on the part of the plaintiff, the plaintiff would have a right to recover. But if there was no such refusal, and the lumber according to the specifications in the bill was sawed and tendered, or was being sawed and supplied or tendered with reasonable dispatch, he would not he entitled to recover. The jury were further informed, that it would he in the power of the parties, upon any consideration of profit or convenience to the plaintiff or of inconvenience to the defendant, to alter the agreement and make it less burthersome to the defendant, and it was for the jury to inquire how this was. If there was a re-adjustment of the contract, and lumber according to this arrangement was sawed and tendered or offered to be tendered, and refused by the plaintiff; or if, while the defendant was going on, fairly and with reasonable dispatch, to fulfil such new' agreement, the completion of the sawing and delivery was dispensed with by the plaintiff (he refusing to accept it), he would not be entitled to recover. The jury were also told, that it was in law competent for *262any one to transact business in all its stages, through an a§ent- The defendant therefore could not only enter into contracts, through the instrumentality of his agent, Thurston, but could through the same means reform them and at all times fulfil and discharge therm For example, it was not necessary that the defendant should in person make a delivery or tender of the lumber — it ivas sufficient if he did so through his agent. Thus upon the whole case the jury were told, the defence depended upon the result of their enquiries as to whether the contract was fulfilled, and if not, whether its fulfilment was dispensed with by the plaintiff, If the contract was made and not performed by the defendant, and its performance not dispensed with by the plaintiff, the plaintiff would be entitled to recover — otherwise not Upon the measure of damages the Court informed the jury,- that should they determine, under the instructions given, that the plain-was entitled to a verdict, it would be establishing in substance that he was entitled to the benefit of his bargain, and it would therefore seem to follo w, that the damages should be equal to the difference between the price agreed to be given and the real value of the lumber contracted for — added to such sum as would be reasonable, by way of demurrage, for the delay occasioned to the plaintiff by the defendant’s conduct. There was a verdict for the plaintiff, and after a motion for a new trial which was over-ruled, and a question as the taxation of costs, which is not distinctly stated in the case sent up, judgment was rendered for the plaintiff, and the defendant appealed.

*Slr'ange*for the plaintiff’.

No counsel in this Court for the defendant.

Nash, J.

It was Objected by the defendant, that the paper (recited in the Case) contained no evidence of any contract, but rvas á mere proposition on the part of the defendant to supply the lumber, and contained no evidence of its acceptance by the plaintiff and no consideration to support it. It rvas by the presiding Judge left to the jury, ás a mat*263ter for them to decide, whether from the paper and the attendant circumstances, the parties intended to enter into an agreement, and had so done, for the sale and purchase of the lumber specified in the contract — if so, that it was a valid contract and upon a sufficient consideration in law. In this instruction we do not perceive that the judge erred. Theob-jection admits that the paper contained a proposal on the part of the defendant to furnish the lumber, and it was properly left to the jury to say, whether it had been accepted by the plaintiff; and the jury were directed to the attendant circumstances, to the acts of the parties to guide them. What were they *1*The object of the plaintiff was to make a contract for the lading ot the Jane with lumber — this paper is drawn up for the purpose of informing the defendant of the quantity and description of the lumber required, to see if he would furnish it upon cheaper terms than Gause would — . the plaintiff brings it back with the endorsement signed by the defendant — and the Jane is immediately removed to the wharf of the defendant, where his saw mill is. These cir cumstances were strong evidence to prove, that the proposal made by the defendant was accepted by the plaintiff, and oí a promise in law upon the part of the plaintiff to pay the proposed price for the lumber on its delivery. This constituted a perfect contract, the mutual promise being in law a sufficient consideration. *Hurlburt*v *Simpson,*3 Ired. 236. The defendant then insisted, that as there was no evidence of an express contract between the plaintiff and the defendant, the plaintiff could not maintain an action in his own name, but that it ought to have been brought in the name of the owners of the vessel or of P. K. Dickinson, to whom she had been consigned. The Judge instructed the jury, that if Whitehead, acting as the agent of the unknown owners, made the contract with the defendant, the action was properly brought in his name. We think this instruction was proper. It is true, that, in general, a mere agent, who makes a contract in behalf of another, cannot maintain an action *264thereon in his own name, *Pigott*v Thompson, 3 Bos. & Pull. 147 —not even in *Equity. Jones*v *Hart's Ex’rs.,*1 Hen. *&*Mum., 471. But where an agent has a beneficial interest in the performance of the contract for commissions, &c., as in the case of a factor, a broker or an auctioneer, or a captain of a ship for freight, he may sustain an action in his own name, although the principal or owner might sue in *his*own name. *Eccleston*v *Clipsham,*1 Saund. 153. Note 1. *Anderson*v *Martindale,*1 East. 497. Nor is the consent of the principal or owner necessary to enable the agent, in those cases, to sue in his own name. It is implied from the nature of the agency. *Saville*v Roberts, 1 Ld. Raym. 380. All valid contracts must be mutual. If the defendant had tendered to the plaintiff the lumber as agreed, or had actually delivered it *on*board the Schooner Jane, could he not have maintained an action against Whitehead for the breach of the contract in the one case, and an assumpsit in another? Lord Mansfield, in the case of *Rich*v *Coe and others,*Cowp. 639, says, *“*Whoever supplies a foreign ship with necessaries has a treble security, 1st, the person of the master; 2dly, the ship itself; and, 3dly, the personal security of the owners,” and that the master is personally liable as making the contract. It follows, as a necessary consequence, growing out of the nature of a contract, that if he can be sued for the breach of the contract, he may on his part also sue for a breach. As to P. K. Dickinson, the action could not have been brought by him, for he was an entire stranger to the contract. It was not made by him, nor for him, for he had never accepted the consignment of the vessel, and was therefore not the agent of the owners.

The defendant further contended, that the plaintiff had altered the contract, by saying to the defendant’s agent, that lumber of a different quality would answer — that the defendant had a sufficiency of lumber, both in quality and quantity, to fulfil his contract as it had been altered, and did tender it to the plaintiff, who refused to receive it; and further, if the contract had not been altered, the defendant was ready *265and proffered to deliver, according to the usage of the place, the lumber as called for in the original contract — that he was then sawing to fulfil the order or bill — and that he could not according to the usage of the place, be required to deliver it all at once, as no time was specified in the order. Upon these points the Judge left it to the jury to say, whether the agreement was altered and a new contract made between the parties — that they were competent to do so — and if the contract was altered, and lumber, according to the new arrangement, was sawed and tendered by the defendant, or offered to be tendered, and was refused by the plaintiff — or if, while the defendant was going on with reasonable dispatch to fulfil such new agreement, the completion of the sawing and delivery was dispensed with by the plaintiff, he could not recover. The Judge charged the jury to the same effect as to the original contract, and wound up his charge by stating to the jury as follows: “ Thus upon the whole case, the defence depended upon the result of their enquiries as to whether the contract whs fulfilled, and if not, whether its fulfilment was dispensed with by the plaintiff. If the contract was made, not fulfilled, and its performance not dispensed with by the plaintiff, he will be entitled to recover ; otherwise not.” We cannot perceive any error in this part of the charge. It was a matter of controversy between the parties, whether the contract had been altered, and whether the defendant had in either shape complied with his obligations ; and,- if he had not, whether the plaintiff had dispensed with his performance. These were all matters to be enquired of by the jury. And when it is recollected that the defendant’s agent stated, that, at the time the plaintiff said he would accept lumber with knots in it if not larger than a quarter of a dollar, the defendant had not lumber sawed sufficient to comply with this new description; and that, when the plaintiff, subsequently, on the same day, demanded of the defendant a fulfilment of his contract, the defendant said he would have nothing more to do with it — we are-inclined to think the defendant has no right to complain of the Judge’s charge.

*266rphe judgment of the Court below must be affirmed.

Another question as to certain witness tickets is submitted to the Court; but the statement is so defective, that we cannot ascertain what is the question, upon which our opinion is required. We are therefore unable to see that there was any error, and the judgment of the Court on this point is also affirmed.

Per Cukiam, Judgment affirmed.