Meehan v. Smolczgnski

Opinion by

Rice, P. J.,

The instrument sued on begins: “I, F. E. Meehan, agree to furnish to the Polish Publishing Co. . . . the following:” Then, after enumerating and describing the articles and stating the prices and terms of payment, the paper concludes:

“Any of the above can be returned, if not satisfactory.

“ Witness:

“ Antoni S. Smolczgnski W. L. Raczynski

££ Alexsander Dutkiewicz Joseph Witkowski. ’ ’

“Stanislaw J. Cienkowski

This paper does not, on its face, import an agreement to sell to these defendants or an agreement on their part to pay. It imports simply an undertaking on the part of the plaintiff to sell to the Polish Publishing Co., and their signing of the paper, unexplained, could be more plausibly interpreted as a witnessing of his undertaking than as a promise on their part to pay the price. Even if no significance is to be attached to the word “ witness,” still, as the paper contains no obligatory words applicable to the defendants personally, or indeed to any one other than the plaintiff, an essential part of a contract which bound them was lacking: Hopkins v. Mehaffy, 11 S. & R. 126. In that case, Chief Justice Gibson pointed out the difference between the covenant of an agent who describes himself as contracting for his principal and the covenant of a principal through the means and by the instrumentality of an agent, and says: “The first is the individual covenant of the agent, the second is the individual covenant of the principal.” But further on in his opinion he suggests the principle which is applicable here and which distinguishes this case from all of those cited by plaintiff’s counsel. The question was whether the paper was the defendant’s deed, and regarding this Chief Justice Gibson said: “He sealed and delivered it, undoubtedly; but there is something more than sealing and delivery necessary to a deed. It ought to contain the proper parts of a contract; and in this instrument there are no obligatory words, applicable to the person of the defendant. Even the sealing and delivery were as the president, and in behalf of the corporation.” Clearly, the instrument in question did not contain all the essentials of a contract. Undoubtedly, it would be pertinent evidence on the trial, but, without something more than was contained in it, it would not sustain an action against these defendants. Hence, it was not a contradiction or denial of anything legally implied from their signing this unilateral instrument, for them to allege in their affidavits of defense that the goods were sold and delivered to the Polish Publishing Co., a corporation, and not to them; that in making the agreement under which the goods were sold and delivered they were acting in the capacity of agents of the corporation duly authorized so to act by resolution of its board of directors; and that the fact that they were so authorized and acting was made known to the plaintiff. Assuming the truth of these allegations, it may be as appropriately said here, as it was in Hopkins v. Mehaffy: the plaintiff did not treat on the basis of the defendants being personally answerable, and to permit him to maintain this action would permit him to have what was not in contemplation of either party, recourse to the person of the agent.

The appeal is dismissed at the costs of the appellant, without prejudice, etc.