But in every other case the trust must, I think, be expressed by some agreement of the parties, not necessarily, perhaps, in writing, but either written or verbal, according to the nature of the transaction. In this case no agreement is shown that the plaintiff was to take or hold as trustee, and that he is a trustee results merely from other circumstances. It is implied from the fact of partnership, and from the fact that the plaintiff received the assignment on account of a debt due the firm. If it is not a case purely of implied trust, as distinguished from an express trust, then I am at loss to conceive of one; and to hold the plaintiff to be a trustee of an express trust would, in my judgment, be a palpable disregard of the statute, and a violation of the intent of the legislature." 1 In a case where a contract in the nature of a lease was effected by a person describing himself in the instrument as agent of the owners, but who had no interest whatever in the premises leased, and did not execute the instrument, and to whom no promise was made as the lessor, it was held that he could not maintain an action for the rent or for possession of the land forfeited by non-payment of the rent. He could not sue as the "person with whom, or in whose name, a contract is made for the benefit of another," because no promise at all was made to him, and he was not a "trustee of an express trust." The court said: "One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue upon such contract in his own name.' Of course this last expression must be taken in connection with the facts of the case; namely, that no promise was made to the plaintiff individually.2 1 Robbins v. Deverill, 20 Wis. 142, per Dixon C. J. This was an action by the plaintiff as assignee of P. & W. The assignment was in writing, but was taken on account of a debt due from P. & W. to the firm of R. & L., which consisted of the plaintiff and the two others, with an understanding that P. & W. were not to be credited on their debt to R. & L. until the money was collected. Dixon C. J. said: "The demand was transferred to the plaintiff alone by words of absolute assignment, no trust being expressed. . . . Upon these facts the plaintiff cannot recover. He is not the real party in interest, nor the trustee of an express trust, within the meaning of the statute. He is not a trustee of an express trust, because no such trust appears from the assignment, and none is shown to exist between himself and his copartners by virtue of any other instrument." He then adds the remark quoted in the text. 2 Rawlings v. Fuller, 31 Ind. 255. [In Mitchell v. St. Mary (1897), 148 Ind. 111, 47 N. E. 224, the court said: "There must be something in the nature of the contract, appearing upon its face or from allegations in the pleadings, disclosing that a trust relation exists and is sought The nature of § 102. *174. Same Subject. New York Cases. an express trust, and the classes of persons embraced within the statutory phrases in question, were determined, upon great consideration, by the New York Court of Appeals, in the leading case of Considerant v. Brisbane.1 "The term trustee of an express trust had acquired a technical and statutory meaning. Express trusts, at least after the time of the adoption of the [New York] Revised Statutes, were defined to be trusts created by the direct and positive acts of the parties, by some writing or deed, or will; and the Revised Statutes had abolished all express trusts except those therein enumerated which related to land. If this section (§ 113 [449]) of the code was to be restricted and limited to those enumerated express trusts, the practical inconvenience arising from making the beneficial interest the sole test of the right to sue, and which that section (§ 113) was intended to obviate, would continue to exist in a large class of formal and informal trusts. Accordingly, in 1851, the section was amended by adding the provision that a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' It is to be observed that there is no attempt to define the meaning of the term trustee of an express trust' in its general sense; but the statutory declaration is that these words shall be construed to include a person,' etc. The counsel for the respondent insists that the sole intention of the legislature in amending the section was to remove a doubt that had been expressed, whether a factor or other agent, who had at common law a right of action on a contract made for the benefit to be enforced for the benefit of the cestui 1 Considerant v. Brisbane, 22 N. Y. 389, 395, per Wright J. As to action by trustees of an express trust, see also Presb. Soc. of Knoxboro v. Beach, 8 Hun, 644; Heavenridge v. Mondy, 49 Ind. 434; 34 id. 28: when a judgment has been obtained by a trustee of an express trust, defendant may set off a judgment in his favor against the beneficiary, and plaintiff is estopped from setting up that he is the real party in interest: North W. Conf. of Univ. v. Myers, 36 id. 375; Brooks v. Harris, 42 id. 177; Wiley v. Starbuck, 44 id. 298; Washington Tp. v. Bonney, 45 id. 77. For further examples, see Wetmore v. Hegeman, 88 N. Y. 69; White v. Allatt, 87 Cal. 245; Cassidy v. Woodward, 77 Iowa, 354; and infra, § * 178. of his principal by reason of his legal interest in the contract, was by the code deprived of that right. But no such limited intention can be inferred from the words of the statute. Indeed, it is only by a liberal construction of the section that the case of a contract by a factor (an individual contract) can be brought within it at all. It is intended manifestly to embrace, not only formal trusts declared by deed inter partes, but all cases in which a person acting in behalf of a third party enters into a written express contract with another, either in his individual name, without description, or in his own name expressly, in trust for, or on behalf of, or for the benefit of, another, by whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name, a contract is made for the benefit of another." These definitions and descriptions of the term fully sustain the conclusions reached in the preceding paragraph as to the legal meaning of the phrase "trustee of an express trust." It is abundantly settled that an agent cannot sue in his own name to enforce an implied liability to his principal; if by any possibility he should be a trustee under such circumstances, he would not be the trustee of an express trust.1 * § 103. 175. Statute includes an Agent with whom an Express Contract is made. Illustrations. Having thus attempted to arrive at a general definition of the term, I shall proceed to consider the cases which are embraced within it, and shall take at first those in which a "person with whom, or in whose name, a contract is made for the benefit of another" has sued in his own name. It is fully established by numerous decisions that when a contract is entered into expressly with an agent in his own name, the promise being made directly to him, although it is known that he is acting for a principal, and even although the principal and his beneficial interest in the agreement are fully disclosed and stipulated for in the very instrument itself, the agent in such 1 Palmer v. Fort Plain, etc. Plk. R. Co., 11 N. Y. 376, 390, per Selden J.: "There is no covenant or agreement running to these officers in terms. They, as agents of the town, convey the right to use the highway upon a certain condition. It is virtually the act of the town through them. If an implied covenant arises upon the instrument, it is a covenant with the town, and must be enforced by, and in the name of, the town." Ruckman v. Pitcher, case is described by the language of the statute, and may maintain an action upon the contract in his own name without joining the person thus beneficially interested. The following are 1 [Leach v. Hill (1898), 106 Iowa, 171, 76 N. W. 667: A bank cashier, who cashes a check upon the undertaking of a third person that the check will be honored by the drawee, may sue, as trustee of an express trust, upon the check and the third person's agreement, without joining the bank for which he was acting. In Mitchell v. St. Mary (1897), 148 Ind. 111, 47 N. E. 224, on the other hand, where a note was endorsed in blank and given to the treasurer of a corporation as a mere custodian of the corporation, with no intention to make him a trustee, such treasurer, it was held, could not sue upon it in his own name as the trustee of an express trust. See also Hudson v. Archer (1893), 4 S. D. 128, 55 N. W. 1099, quoting the text. See also Herman v. City of Oconto (1898), 100 Wis. 391, 76 N. W. 364; Ward v. Ryba (1897), 58 Kan. 741, 51 Pac. 223; Brown v. Sharkey (1894), 93 Iowa, 157, 61 N. W. 364.] Considerant v. Brisbane, 22 N. Y. 389, reversing s. c. 2 Bosw. 471. The plaintiff was agent for a foreign corporation which did business under the name of 'Bureau, Guillon, Goden, & Co." The defendant applied to the plaintiff for stock in said corporation, and authorized the plaintiff to subscribe in his name for such stock to the amount of $10,000, and, in payment of the subscription, gave plaintiff two notes, each in the following form: "New York, March 1, 1855. On the first day of July, 1855, I promise to pay V. Considerant, executive agent of the company Bureau, Guillon, Goden, & Co., the sum of $5,000, for which I am to receive stock of said company known as premium stock, to the amount of $5,000, value received. A. Brisbane." The plaintiff alleged that he had entered defendant's name as a subscriber; averred a tender of the stock and a refusal to accept the same; and sued in his own name on the notes. The Court of Appeals held that he could maintain the action. The judgment of Wright J. is an exhaustive discussion of the whole subject. Denio J. dissented, but not from the general reasoning as to the true interpre tation of the code. His dissent was based entirely upon a construction of the notes sued upon. He insisted that the promise in these notes was, in fact, made to the company, and not to the agent; and so the case did not fall within the terms of the statutory provision. Rowland V. Phalen, 1 Bosw. 43; Cheltenham Firebrick Co. v. Cook, 44 Mo. 29; Wright v. Tinsley, 30 Mo. 389; Weaver v. Wabash, etc. Canal Co. Trs., 28 Ind. 112; Rice v. Savery, 22 Iowa, 470, in which it was held that either the agent or the beneficiary might sue. See supra, § 140. Winters v. Rush, 34 Cal. 136; Ord v. McKee, 5 Cal. 515; Scantlin v. Allison, 12 Kan. 85, 88; Noe v. Christie, 51 N. Y. 270, 274. In Hubbell v. Medbury, 53 N. Y. 98, the provision of the code was held to be permissive only, and not to prohibit an action by the beneficiary, even without the trustee. (Compare ante, § 138.) And see Presb. Soc. of Knoxboro v. Beach, 8 Hun, 644; People v. Slocum, 1 Idaho, 62. It is held in New York that an action against a common carrier for a breach of his contract, or of his duty to carry, must be brought in the name of the owner of the goods, although the contract may have been made or the goods shipped by another. Green v. Clarke, 12 N. Y. 343; Krulder v. Ellison, 47 N. Y. 36; Thompson v. Fargo, 63 N. Y. 479; 49 N. Y. 188. But when the consignor, although not the general owner, has a lien upon or a special interest in the goods, and makes the contract and pays the consideration for their carriage, he may bring an action for the breach of the contract in his own name, in order that he may protect his rights. Swift v. Pacific Mail S. S. Co., 106 N. Y. 206. The usual rule, however, seems to be that the person with whom the common carrier contracts, although for another's benefit, may sue, whether or not he has a special interest in the goods. Snider r. Adams Exp. Co., 77 Mo. 533; Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 473; Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 91; Waterman. C. M. & St. P. Ry. Co., 61 Wis. 464. For further instances of particular instances, or examples of particular classes of cases, in which an agent has been permitted to sue, or may always sue, in his own name, because the contract is made with him directly, although on behalf of a known principal: on a sealed lease. between the plaintiff, as agent for the owner, of the first part, and the defendant as the lessee;1 on a sealed contract between plaintiff and defendant, the plaintiff describing himself as agent for his sisters, and stipulating that they should act in defendant's theatre at specified wages, which the latter covenanted to pay, the action being brought for such wages; 2 where the plaintiff, being the holder of the legal title to certain land, which he held, however, merely for the benefit of a married woman, was induced, by false representations, to execute a mortgage thereon, supposing it to be for her benefit and at her request, but in fact without any consideration paid to himself or to her, brought an action in his own name to restrain a foreclosure of the mortgage; in an action on a policy of marine insurance “for the account of whom it may concern," and in case of loss the amount insured to be paid to the plaintiff or order; where a promise was made to the administrator of an estate, and he afterwards resigned, and another was appointed in his place, it being held that he was the proper party to sue; where a grantee in a deed of land was simply acting as agent for another, and the purchase price was paid with that other's money, the grantee is the proper party to sue for the breach of a covenant which was broken immediately suits by agents on contracts made with them expressly in their own names, see McLaughlin v. Deadwood First Nat. Bk., 6 Dak. 406; Consol. Barb-Wire Co. v. Purcell, 48 Kan. 267; Cremer v. Wimmer, 40 Minn. 511 (contract by agent for sale of land); Close v. Hodges, 44 Minn. 204 (mortgage to agent); Lake v. Albert, 37 Minn. 453; Stoll v. Sheldon, 13 Neb. 207; Seymour". Smith, 114 N. Y. 481; Coffin v. Grand Rapids Hydr. Co. (1892), 18 N. Y. Suppl. 782; Hollingsworth v. Moulton, 53 Hun, 91; Albany & R. Iron, etc. Co. v. Lundberg, 121 U. S. 451; Merchants' Bank v. McClelland, 9 Colo. 608 (cashier of bank); Holmes v. Boyd, 90 Ind. 332 (same). Further illustrations of the text: Coffin v. Grand Rapids Hydraulic Co. (N. Y. App. 1893), 32 N. E. 1076; Lewis v. Whitten (Mo. Sup. 1892), 20 S. W. 617; 4 3 Rockwell v. Holcomb (Colo. 1892), 31 Pac. 1 Morgan v. Reid, 7 Abb. Pr. 215. 5 Harney v. Dutcher, 15 Mo. 89. |