upon the execution of the deed, e. g., a covenant against incumbrances;1 a guest at an inn who had property of another in his possession, which was lost, was held to be the proper party to sue for its value; 2 an auctioneer may sue for the price of goods sold by him, whether he have any interest in the price or not,3 and a sheriff, for the price of property sold by him on execution; * the master of a ship or other vessel may maintain an action for freight, or on any contract concerning the ship, entered into on behalf of the owners, or for the taking and carrying away, conversion of, or injury to, the cargo. 5 4 § 104. *176. Actions on Bonds given to protect other Persons. Obligee may sue. Various kinds of bonds and undertakings generally required by statute, and given to some designated obligee, although showing on the face that they are designed to protect, secure, or indemnify other persons, are also contracts made “with, or in the name of, one person for the benefit of another;" and although the party immediately interested may in general sue in his own name, yet the obligee or person to whom the promise is made may always, unless forbidden by statute, maintain the action, and in some States is the only one who is permitted to do so. Among these are bonds in great variety given to the "people" or to the "State," conditioned upon the faithful discharge of their duties by public, local, or municipal officers, actions on which, except when otherwise directed by statute, may be brought by the people or the State; bonds running to the people or to the State, conditioned upon the faithful discharge of duties by various private or semi-private trustees, or by persons appointed in judicial proceedings and the 9 contractor with labor and materials, is a trustee of an express trust. The same question was raised in United States v. Rundle (1901), 27 Wash. 7, 67 Pac. 395; and the United States, as obligee of the bond, was held a proper plaintiff, as trustee of an express trust.] 9 Hunter v. Mercer Cy. Com'rs of, etc., 10 Ohio St. 515 (county treasurer's bond running to the State); State v. Moore, 19 Mo. 369 (sheriff's bond); Meier . Lester, 21 Mo. 112 (constable's bond); Shelby Cy. v. Simmonds, 33 Iowa, 345 (county treasurer's bond running to the county). 1 like, such as those given by administrators, executors, or receivers; those given by the trustees of an estate, although entirely for the benefit of the persons having an interest in the estate; bastardy bonds and the like; bonds given directly to a sheriff or other superior officer to indemnify a deputy sheriff or other subordinate officer against the consequences of acts done in the discharge of the latter's official duties; a bond given by a town superintendent of common schools to the supervisor of the town, an action on which must be brought by the supervisor or his successor in office.5 § 105. *177. Actions on Contracts Made for Undisclosed Principals. Agent may sue. In all the instances heretofore mentioned, the contract has been made with an agent in his own name, and the promise given to him, although the principal or beneficiary was known, and even expressly designated and provided for by the terms of the agreement. The rule is the same, and even more emphatically so, if the principal or beneficiary is, at the time of the contract, unknown or undisclosed, or not mentioned in the instrument. When a contract, even in writing, is made with and by an agent, and no mention is made of any principal or beneficiary, but the other contracting party supposes he is dealing with the former on his own private account, but in fact such person is an agent for an undisclosed principal and enters into the agreement in the course of his agency, actually effecting the contract on behalf of that superior behind him, the rule is well settled that the one who was thus a direct party to the agreement the actual agent-may bring an action upon it in his own name, or the principal may sue in his name. 1 People v. Laws, 3 Abb. Pr. 450; Annett v. Kerr, 28 How. Pr. 324; People v. Townsend, 37 Barb. 520. The reporter's head-note reads should be sued by the people; this is more than was decided. Baggott v. Boulger, 2 Duer, 160. The bond may also be prosecuted by the person interested and benefited. See, however, Carmichael v. Moore, 88 N. C. 29. 2 People v. Norton, 9 N. Y. 176, 179. 8 People v. Clark, 21 Barb. 214. [See Myers v. Baughman (1901), 61 Neb. 818, 86 N. W. 507, where it was held that an action on a bastardy bond could be brought only in the name of the State, which was named as obligee, for the use of the 5 Fuller v. Fullerton, 14 Barb. 59. [Stewart v. Gregory, Carter & Co. (1900), 9 N. D. 618, 84 N. W. 553; Carter v. Southern Ry. Co. (1900), 111 Ga. 38, 36 S. E. 308; Tustin Fruit Assn. v. Earl Fruit Co. (1898), Cal., 53 Pac. 693.] Erickson v. Compton, 6 How. Pr. 471; Grinnell v. Schmidt, 2 Sandf. 706; Union India Rubber Co. v. Tomlinson, 1 E. D. Smith, 364; Van Lien v. Byrnes, 1 Hilt. 133; Higgins v. Senior, 8 Mees. & W. § 106. *178. Other Classes of Trustees. I have thus far considered only the particular class of trustees of an express trust specially described in some of the codes as "persons with whom or in whose name a contract is made for the benefit of others." There are numerous other and more properly designated classes of such trustees; and whatever be their nature, or the object of the trust, they may, by virtue of this section of the statute, maintain an action in their own names. They are generally created or appointed by some instrument in the nature of a grant or conveyance, or they may be appointed in judicial proceedings by a court. Although the rule is simple and peremptory that these trustees may sue without joining the beneficiaries, the following instances in which the rule has been applied may be enumerated: assignees, general or special, in trust, to pay creditors;1 the assignees of a contract in trust to reimburse out of the proceeds thereof third persons for advances made; 2 trustees appointed to take and collect subscriptions for colleges and other similar purposes; a receiver appointed in another State; the grantee of lands in trust for the use and benefit of another is the proper party to sue for possession or for damages by trespass or other injury;5 a person who agreed to hold notes 3 834; Sims . Bond, 5 B. & Ad. 389, 393, per Lord Denman. Ludwig v. Gillespie, 105 N. Y. 653; McLaughlin v. Great Western Ins. Co., 20 N. Y. Suppl. (Com. Pl. 1892), 536; Manette v. Simpson, 15 N. Y. Suppl. (Supreme Ct. 1891), 448; Snider v. Adams Exp. Co., 77 Mo. 523; Keown v. Vogel, 25 Mo. App. 35. As against right of undisclosed principal to sue, see Kelley v. Thuey, 102 Mo. 522. In ordinary contracts made by agents for their principals, the latter are the real parties in interest, and must sue. Swift v. Swift, 46 Cal. 266, 269; Chin Kem You v. Ah Joan, 75 Cal. 124; Ferguson v. McMahon, 52 Ark. 433. See, also, ante, § *141. 1 Lewis v. Graham, 4 Abb. Pr. 106; St. Anthony's Mill Co. v. Vandall, 1 Minn. 246. See Foster v. Brown, 65 Ind. 234. Assignee to pay creditors distinguished from a mere agent to collect claims and pay debts: Sandmeyer v. Dak. F. & M. Ins. Co. (S. Dak. 1891), 50 N. W. 353; citing Brockmeyer v. Wash. Nat. Bk., 40 Kan. 376; Cornley v. Dazian, 114 N. Y. 161; Simonton v. First Nat. Bk. of Minneapolis, 24 Minn. 216; Witter v. Little, 66 Iowa, 431. Compare Wynne v. Heck, 92 N. C. 414. 2 Cummins v. Barkalow, 4 Keyes, 514. [And in Bates v. Richards Lumber Co. (1893), 56 Minn. 14, 57 N. W. 218, it was held that a beneficial interest in a contract for work and labor may be assigned by a party who engages therein to perform the same, so as to entitle the assignee to recover the contract price upon the fulfilment of the contract by the assignor, and that the assignee in such a case is a trustee of an express trust, as he is obliged to account for the proceeds.] 8 Slocum v. Barry, 34 How. Pr. 320; Dix v. Akers, 30 Ind. 431; Musselman v. Cravens, 47 Ind. 4. See Lathrop v. Knapp, 37 Wis. 307. Runk v. St. John, 29 Barb. 585; per contra, Hope Life Ins. Co. v. Taylor, 2 Robt. 278. See Lathrop v. Knapp, 37 Wis. 307; Garver v. Kent, 70 Ind. 428. 5 Goodrich. Milwaukee, 24 Wis. 422; Boardman v. Beckwith, 18 Iowa, 292, and a mortgage for the benefit of another, and to apply the proceeds thereof when collected in payment of a debt owned by himself to that other, may sue to enforce the securities;1 the assignee of a stock subscription, who holds it for the benefit of a bank, is the proper party to bring an action upon it; 2 a person to whom chattels had been transferred for the benefit of a married woman in trust, to permit her to have exclusive use and possession, and to dispose of them by her direction, is the proper party to bring an action to restrain interference with or disturbance of her possession. It has been held in Kentucky that where a railroad company issued bonds which were held by many different persons, and executed a mortgage to a trustee for the purpose of securing such bonds, this trustee, who was the sole mortgagee named in the instrument, could not maintain an action in his own name alone to foreclose the mortgage on account of the non-payment of the money due on the bonds, but he must join the bond-holders as parties plaintiff with himself. The correctness of this decision may well be doubted in the light of the other cases above cited, which uniformly proceed upon a different doctrine. § 107. *179. Actions Brought by Public Officers. Many public officers are authorized by law to bring actions in their own names, and by virtue of their official character, in respect of matters falling within the scope of their official functions.. As this subject is entirely regulated by special statutes, which greatly vary in different States, and as it is not in fact a portion of the general civil procedure, but rather a matter exceptional and collateral thereto, I shall not attempt any discussion of the cases in which such officers may sue, but shall simply mention a few 295. See Holden . N. Y. & Erie Bank, 72 N. Y. 286, 297; Tyler v. Granger, 48 Cal. 259; McKinnon v. McKinnon, 81 N. C. 201; [Lewis v. St. Paul, etc. Ry. Co. (1894), 5 S. D. 148, 58 N. W. 580.] 1 Gardinier v. Kellogg, 14 Wis. 605. See Davidson v. Elms, 67 N. C. 228; Thompson v. Toland, 48 Cal. 99, 114; Moorehead v. Hyde, 38 Iowa, 382. [In Struckmeyer v. Lamb (1896), 64 Minn. 57, 65 N. W. 930, the assignee of certain notes and chattel mortgages, who was to bring suit against the maker and account to his assignor for the proceeds if he col lected anything, was held to be a trustee 3 Reed v. Harris, 7 Robt. 151. A trustee under separation articles, by the terms of which he was to receive annual payments from the husband and for the support of the wife, may sue for the recovery of such sums without joining the wife. Clark v. Fosdick, 118 N. Y. 7. 4 Bardstown & L. R. Co. v. Metcalfe, 4 Metc. (Ky.) 199. 3 decisions which may have some general interest.1 Actions by public officers suing as such should be brought in their individual names, but with their official titles added; 2 but the mere use of the official title will not be enough, without the proper averments of the official character in the pleadings; in the absence of such averments, the title will be regarded as only a description of the person. In New York, counties cannot sue nor be sued. All actions and judicial proceedings in favor of or against counties, except those which some county officer is expressly authorized to maintain in his own name for the benefit of the county, must be brought by or against the "Board of Supervisors" of the county named, as an organized unit, and by that designation, and not against the supervisors individually; but when the action is by or against the supervisors, not as the immediate representatives and in the place of the county, it must be brought by or against them individually, with their title of office added. The rule in respect to towns in New York is different. They are municipal corporations, and must sue and be sued by their corporate name, except in the few cases where town officers are expressly authorized by statute to sue in their name of office for the benefit of the town. In accordance with this rule, where the supervisor and commissioner of highways had entered into a contract on behalf of the town, which contained no promise to or undertaking with themselves, as such officers, it was held that they could not maintain an action upon it in their joint names, but the action should have been by the town, as the real party in interest.7 1 [A county judge, suing on a trustee's bond under R. S. § 4015, is the trustee of an express trust: Richter v. Leiby (1898), 99 Wis. 512, 75 N. W. 82.] 2 Paige v. Fazackerly, 36 Barb. 392. As to actions by towns, counties, supervisors, and similar officers, see Hathaway v. Cincinnatus, 62 N. Y. 434; Lewis v. Marshall, 56 N. Y. 663; Guilford v. Cooley, 58 id 116; Chautauqua v. Gifford, 8 Hun, 152; Sutherland v Carr, 85 N. Y. 104; Hagadorn v. Raux, 72 id. 583; Cairns v. O'Bleness, 40 Wis. 469; Beaver Dam v. Frings, 17 id. 398; Franklin T. Sup. v. Kirby, 25 id. 498: Dutcher v. Dutcher, 39 id. 651 Pine Valley v. Unity, 40 id. 682; La Crosse v. Melrose, 22 id. 459; School Dir. of Sigel v. Coe, 40 id. 103; Oconto Cy. Sup. v. Hall, 42 id. 59; La fayette Cy. v. Hixon, 69 Mo. 581; Vanarsdall v. The State, 65 Ind. 176; Garver v. Kent, 70 id. 428; Jefferson Cy. Com'rs v. Lineberger, 3 Mont. 31; San Benito Cy. v. Whitesides, 51 Cal. 416. 3 Gould v. Glass, 19 Barb. 179. [It was held in Atkinson v. Cawley (1900), 112 Ga. 485, 37 S. E. 715, that where an action is instituted by "W. Y. Atkinson, Governor, etc.," the words "Governor, etc.," are merely descriptio person, and do not designate the capacity in which the suit is brought.] 4 Hill . Livingston Cy. Sup., 12 N. Y. 52; Magee v. Cutler, 43 Barb. 239. 5 Wild v. Columbia Cy. Sup., 9 How. Pr. 315, per Harris J. 6 Duanesburgh v. Jenkins, 46 Barb. 294. 7 Palmer v. Fort Plain & C. Plk. R. |