Hechinger v. Dinkler Hotel Co.

Stephens, J.

(After stating the foregoing facts.) The letter from the plaintiff to the defendant, which must be looked to as constituting the contract, purports to be the individual act of the plaintiff in his own name, and not as agent for Danziger and Jacobs mentioned in the petition, or for any one else. This letter contains no language whatsoever which can be construed as obligating the plaintiff to do anything. It makes no reference to the plaintiff’s alleged principals, Danziger and Jacobs, unless such Reference is contained in the word “they” or in the phrase “the parties now having this land under option.” It recites that “it is proposed to erect a 400-room hotel in the city of New Orleans” of a certain general description, upon certain described land, and that “the parties now having this land under option . . will lease to you said 400-room hotel,” etc. This indicates that performance is to be made by others than the plaintiff. If this language could be construed as indicating an obligation upon any one to lease to the defendant such hotel, nowhere does it appear that the plaintiff, the contracting party, undertakes to see that this obligation is carried out.

The petition expressly alleges that the plaintiff himself entered into the contract. It does not allege that Danziger and Jacobs, or the “parties now having this land under option,” or “they,” were parties to the contract. In view of this allegation that the plaintiff himself was the contracting party, and of the fact that from an inspection of the plaintiff’s letter, which is the contract sued on, it appears that the plaintiff, and not Danziger and Jacobs, was the contracting party, the allegation in the petition that the plaintiff acted as real-estate agent representing Danziger and Jacobs can not be construed as an allegation that the contract was made by Danziger and Jacobs through the plaintiff as their agent. The contract not having been made in behalf of a principal, the plaintiff can not maintain the suit upon the theory that he is an agent whose agency is coupled with an interest.

Since it appears that the plaintiff was not bound by the alleged contract, the defendant’s promise to perform is without consideration. The alleged contract, therefore, is void for lack of mutuality, and the suit was properly dismissed on demurrer.

Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.