Rhoades v. Blackiston. all the profits, except enough to support plaintiff and his family, until the debt was paid, when the business and the profits should again become plaintiff's. After the alleged breach by defendant, plaintiff became bankrupt. Held, that plaintiff could maintain the action in his own name, and that his right of action did not pass to his assignees in bankruptcy. ACTION for an alleged breach of contract to sell and deliver coal. It appeared that, after the alleged breach, the plaintiff was adjudged a bankrupt; that he made the agreement in his own name, while acting as agent of Alonzo V. Lynde, and that he made it as agent; that he owed Lynde a large sum of money, and had transferred his coal business to him as security for the debt; that it was agreed between them that Lynde was to furnish the capital, and was to receive all the profits of the business, except enough to support the plaintiff and his family, until the debt should be paid; that, after the debt was paid, the property was to be his, and the profits of the business; and that he had no property in the coal, or interest other than as stated, and his own money was not invested in the business; but that he was to have his living out of the business until the debt was paid. The defendants objected that the plaintiff could not maintain the action, and the judge reported the case for the determination of the full court, if the court should be of opinion that the plaintiff could not maintain the action, judgment to be for the defendants, otherwise the case to stand for trial. T. H. Sweetser and C. Abbott, for plaintiff. W. A. Field, for defendants, cited United States Stat. of 1867, ch. 176, § 14; Tamplin v. Wentworth, 99 Mass. 63; Wright v. Fairfield, 2 B. & Ad. 727; Ferguson v. Spencer, 1 Man. & Gr. 987; D'Arnay V. Chesneau, 13 Mees. & Welsb. 796-809; Parnham v. Hurst, 8 id. 743; Castelli v. Boddington, 1 El. & Bl. 66, 879; Beckham v. Drake, 2 H. L. Cas. 579-632; Ontario Bank v. Mumford, 2 Barb. Ch. 596. COLT, J. It is a well-established rule of law that when a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it. If the agent sues, it is no ground of defense that the beneficial interest is in another, or that the plaintiff, when he recovers, will be bound to account to another. There is an additional reason for Rhoades v. Blackiston. giving this right to the agent, when he has a special interest in the subject-matter, or a lien upon it. But the rule prevails when the sole interest under the contract is in the principal. The agent's right is, of course, subordinate to and liable to the control of the principal, to the extent of his interest. He may supersede it by suing in his own name, or otherwise suspend or extinguish it, subject only to the special right or lien which the agent may have acquired. Colburn v. Phillips, 13 Gray, 64; Fuirfield v. Adams, 16 Pick. 383; Story on Agency, § 403. In this case, the contract relied on was made by the plaintiff in his own name, as agent for an undisclosed principal, who does not now in any way interpose. But, admitting the law of principal and agent as that stated, the defendants further contend that the plaintiff's right of action passed to his assignees in bankruptcy, who were appointed in proceedings commenced after the alleged breach. It appears that the plaintiff made the contract in the course of a business which he was carrying on for Alonzo V. Lynde, and which he had previously transferred to Lynde as security for a debt, with the agreement that, after the debt was paid, the property was to be his with the profits of the business, Lynde furnishing all the capital and receiving all the profits, except enough for the support of the plaintiff and his family, until the debt should be paid. And it is claimed that, upon these facts, the plaintiff had such a legal and equitable interest in the contract that it must pass by the bankruptcy proceedings to the assignees. Assignees in bankruptcy do not, like heirs and executors, take the whole legal title in the bankrupt's property. They take such estate only as the bankrupt had a beneficial as well as legal interest in, and which is to be applied for the payment of his debts. To a plea that the plaintiff is a bankrupt, and that all his estate vested in his assignees, it is a good replication that the whole beneficial interest in the contract or demand in suit was vested by prior assignment in a third party, for whose benefit the suit is prosecuted. If, however, the bankrupt has any beneficial interest in the avails of the suit, then the whole legal title vests in his assignee, and the action must be in his name, for there cannot be two legal owners of one contract at the same time. Webster v. Scales, 4 Doug. 7; Winch v. Keeley 1 'T. R. 619; Carpenter v. Marnell, 3 B. & P. 40. In most of the English cases in which these rules have been applied, there was an assignment of a chose in action by the bank Rhoades v. Blackiston. rupt to a third party, made before the bankruptcy, and they have mainly turned on the question, whether the transfer was absolute or only as security for debt, and, if as security only, then further, on the question whether the security was of greater value than the debt secured, at the time of the bankruptcy. The case of D'Arnay v. Chesneau, 13 Mees. & Welsb. 796-809, relied on at the argument, was of this description, and Baron PARKE there declared: "That if the debt to be secured was less than the debt assigned, and there was nothing more than a simple assignment of the debt as a security, the right of action would vest in the insolvent's assignees. In such a case, they would have an immediate interest in the sum to be recovered, from which benefit to the creditors might result, and they would not have been bound to refund all they had recovered to the equitable assignee of the debt (their cestui que trust), which is the proper criterion." Dangerfield v. Thomas, 9 Ad. & El. 292. The court are of opinion that the rule in these cases, if ever applicable to a case where an agent sues upon a contract, made in the course of his agency, where the suit is subject to the control of the principal, cannot be applied to defeat the plaintiff's action here. The pledged property consisted of a business to be carried on with the capital of the party to whom it was transferred. The contracts made in the course of it were the contracts of the principal. The agent had no immediate beneficial interest in them. His interest was only in the future profits, and that contingent on their being sufficient to pay the debt he owed. The contract of Lynde to restore the property to the plaintiff was executory, and there was no claim that the contingency had happened upon which the business and property were to become the plaintiff's. The inference from the facts reported is, that it did not. The support which he was to have for himself and his family was plainly in compensation for his agency in the business. And there is nothing to show that the creditors in bankruptcy have any valuable interest in the contract declared on. Parnham v. Hurst, 8 Mees. & Welsb. 743; Ontario Bank v. Mumford, 2 Barb. Ch. 596; 3 Parsons on Con tracts, 479. Case to stand for trial. Kelly v. Riley. KELLY, plaintiff, v. RILEY. (106 Mass. 839.) - Breach of promise of marriage-promisor already married — seduction as aggravation of damages. In an action by a woman for breach of a promise of marriage, held, that the action could be maintained although the defendant was married at the time of the promise, if the plaintiff was ignorant thereof; also, that evidence that plaintiff was seduced by defendant under promise of marriage was admissible in aggravation of damages. (See note, p. 338.) ACTION for breach of a promise of marriage. At the trial evidence was introduced to show that defendant was a married man at the time of the promise, and the defendant requested the judge to rule that the action could not, therefore, be maintained. The judge declined so to rule, but ruled that the action could be maintained if the plaintiff was ignorant of the fact that defendant was married at the time of the promise. The plaintiff offered evidence that, induced by the promise of marriage, she submitted to sexual intercourse with defendant, and became pregnant by him, and was delivered of a child now living. This evidence was admitted, under defendant's objection, as affecting the measure of damages. The judge charged the jury as follows: "Promises of marriage, not often being made in the presence of witnesses or in writing, have usually, in cases of this nature, been proved by circumstantial evidence. As the promise of the plaintiff is the consideration of the promise of the defendant, both must be proved in order to support the action; and each promise may be established by the same species of proof; and the conduct and deportment, as well as the language of the parties, toward each other, may furnish satisfactory evidence of the fact that a mutual promise of marriage has been made between them; that is, a promise of marriage by one and a corresponding promise of marriage by the other. "In determining what sum of money would reasonably indemnify and compensate the plaintiff for a breach of the defendant's contract with her, the jury may consider, in addition to her expenditure in preparing, the disappointment of her reasonable expecta Kelly v. Riley. tions, and inquire what she has lost by her disappointment, and for that purpose consider, among other things, what would be the money value or worldly advantage (separate from considerations of sentiment and affection) of a marriage which would give her a permanent home, and the advantage of such a domestic establishment as would be suitable to her as the wife of a person of the defendant's estate and station in life. The jury ought also to consider whether her affections were in fact implicated, and whether she had become attached to the defendant, and, if such was the fact, the wound and injury to her affections would be an additional element in the computation of her damages; and also to consider whatever mortification, pain or distress of mind she suffered, resulting from the discovery of the defendant's inability to marry, by reason of his living wife, or his refusal to marry her within a reasonable time after the contract was made between them, if he was not disabled from doing so by reason of a living wife. And if, while the parties were mutually promised in marriage, and intending and expecting marriage in a short time, the defendant solicited, in consideration of such intention and expectation, and the plaintiff permitted, in consideration of such expectation and intention, sexual intercourse with her, whereby she became pregnant with a child, which was born alive, and is now living, these facts may be considered by the jury in computing damages, so far as they tend to aggravate and increase the disappointment, mortification, pain or distress of mind which she has suffered by reason of the defendant's breach of contract." A verdict for the plaintiff was returned, and the defendant alleged exceptions. The plaintiff moved for judgment. The exceptions were all waived, and plaintiff's motion denied. To the refusal of the judge to grant her motion, and to his allowance of the defendant's exceptions, the plaintiff alleged exceptions. J. N. Marshall, for plaintiff. G. Stevens, for defendant. COLT, J. (After deciding a question of practice.) It remains to dispose of the exceptions of the defendant, taken at the trial. The court was asked to rule that, if the defendant was a married man at the time of his promise, the plaintiff could not be injured by a failVOL. VIII. - 43 |