Majority
p. 393Gunn against Cantine, gent. one of the attorneys, &c. NEWYORK, Oct 1813.
Headnote
A mere agent, or attorney, not having any beneficial interest in & contract, can’not maintain, an action upon ñame.1”3 °TOWhere A. having a general power of attorney to collect debts, &c. in the name and for the use of B., delivered, a contract to an attorney to collect, who gave him a receipt for it, generally, as for collection ; it was held that A. could not maintain an action in his own name# against tho attorney, for the money -collected by him. on the contract so pul into his hands.
THIS was an action of assumpsit, for money had and received to the use of the plaintiff. The cause was tried at the Columbia circuit, in October, 1812, before Mr. Justice Van Ness.
The plaintiff produced m evidence a receipt by the defendant 1 . , as tollows: Received ot Daniel uunn an article of agreement between Barent Stryker and Alexander Boyd, dated the 20th
p. 394contended that from the manifest intent of the parties, appearing from the receipt given by the defendant to the plaintiff, the contract was between the plaintiff and defendant, and the defendant was responsible to the plaintiff. Where a person has a beneficial interest, or possession coupled with an interest, he may bring a suit in his own name; and Lord Loughborough said, in the case of Williams v. Millington,[1] that it was not true that two persons could not bring separate actions for the same cause 5 f°r that a factor and owner might each have actions on a contract,[2] insisted that there was nothing in the terms of the receipt, which showed that the plaintiff was entitled to the money to be collected on the agreement, or had any beneficial inierest in it; on the contrary, it is stated to have been assigned to
December, 1802, assigned to Stephen Simmons, to collect the money therein contained.” Signed “ Moses I. Cantine.” The defendant admitted that he collected, on the agreement specified m the receipt, in August, 1810, the sum of 310 dollars. The defendant then moved for a nonsuit, on the ground that the suit ought to have been brought in the name of Stephen Simmons; but the judge overruled the motion. The defendant then proved that the plaintiff had said, in regard to the money collected on the agreement, that he acted as the agent of Simmons, and that the money belonged to Simmons, and that it was to be collected for hi* benefit. The defendant then offered to set off two promissory notes against Simmons, but the plaintiff objected to the set-off, on the ground that notice of it had not been given with the plea; and the judge rejected the set-off.
The plaintiff then read in evidence a power of attorney from Stephen Simmons to him, constituting him, for divers good causes and considerations, his attorney, for him, (Simmons,) and in his name, anci to his use, to ask and demand, sue for, recover and receive of all and every person or persons all sums of money, debts, duties and demands whatsoever, which were due and owing or thereafter to become due and owing, to him the said Stephen Sim mons,” 8rc. being a general letter of attorney, in the common form.
A verdict was taken for the plaintiff, subject to the opinion of the court on a case containing the facts above stated.
Adams, for the plaintiff,
Van Buren, contra,
p. 395■Simmons, who must, therefore, have the interest. The power of attorney gives an authority to the plaintiff to collect money only In the name and to the use of Simmons. An attorney can do no act in his own name.
It appears affirmatively, from the case, that the plaintiff had no beneficial interest in the money collected. He was a mere attorney employed by Simmons to collect this debt; and there was no express promise by the defendant to pay the money collected to the plaintiff.
The letter of attorney was revocable at pleasure; and the law will not raise any assumpsit to the plaintiff from the facts in this case. This is, by no means, so strong a case as that of Pigott v. Thompson, (3 Bos. & Pull. 147.) and yet in that case the agent was not permitted to sue in his own name. The defendant is entitled to judgment.
Judgment for the defendant