DICKINSON against RODMAN.
THE Defendant, then a resident of New-York, sent jWiliams to this State to collect a debt due from Willis, did not authorize his agent to bind him by deed, With the view of getting satisfaction for the debt, Wil-Hams entered into an agreement, under seal, with Willis, thereby the latter sold to him, as agent of the Dtfend-⅛ ve¿sel then Gn the stocks, which he undertook to ’ complete ánd then deliver to whomsoever should be appointed by the Defendant to receive her. In considera-¿,011 whereof, and in pavment for the vessel, the agreement ' . , TJT. , states, that the Defendant should give up Wnhs s note, which he held, and pay the balance which might remain ¿ue^ estimated at $77'0, to Dickinson, the Plaintiff The agreement was executed by Willis, on the one part, arid by Williams, as agent of Rodman, on the other part.
Where W is lir!ebted to an i to the the^latter'authorizes an a-^ his debt, but not to bmd him by deed, andtheagent fron^w'a ves-se on account of his principal, whose irfpart pay” ment, and' the greed to be Pláfntíffthaf-terwards the Defendant, knowing what the agent had done, approves of it and receives the vessel, which is not, however, finished according to the contract of W ; still the Plaintiff cannot maintain Assumpsit against the Defendant, for the sum agreed to be paid to him by the deed.
*89When the agreement, was executed, the Plaintiff was a large creditor of Willis’s, and approved ot the contract, as securing to him payment of part of his debt. The vessel was not completed^according to the contract, either as to the time or manner, But the Defendant afterwards, knowing what Williams had done,, approved of it, took possession of the vessel, and used it as his own.
The Plaintiff brought an Action of Assumpsit against the Defendant to recover the sum contracted to be paid to him under the agreement; for which he obtained a verdict.
A motion is made for a New 'í’rial, on two grounds :
1st. That an Action of Assumpsit will not lie.
2dly. If it will, that the non-performance of Willis's part of the contract, relieves the Defendant from the Plaintiff’s claim-.
Mordecai, for the fiefendant.
The Plaintiff cannot maintain an action of assumpsit against the Defendant; because here is an agreement under hand and seal ; upon which, Willis, had he complied with the terms of it, might have maintained an action of covenant against Rodman. To this the objection is, that it does not appear that Williams was authorized to bind Rodman by deed. But how can the Plaintiff make Rodman liable at all ? Williams was an agent to collect a debt. He was a special agent, who cannot bind his principal by any acts, in which he exceeds his authoty. He was not authorized to contract a debt.
It is not then, that Rodman is liable for Williams's act, because he was his agent, but on account of the subsequent confirmation of his act. Omnis ratihabitio retró trahitur set mandato cequiparatur. If, therefore, Rodman could have authorized him, by parol, to have executed the deed, *90he might confirm it afterwards by parol. In Com, Dig. Attorney, c. 5, it is only said, that an attorney must gerie-rally be constituted by deed ; but Ball v, Dunsterville,
where one signed in presence of the other, Mackay v<¡ Bloodgood,
where one signed by consent of the other, prove, that a consent without deed, is sufficient Rod-man, having confirmed the contract, is as much liable as the partner who authorized the other to seal for him.—¡ And the technical mode of signing the instrument makes RO difference, according to the case of Potts v. Laxar us.
If Rodmart is bound, it must be, either because his agent hada right to bind him, or because of his own act¿ But his agent could not bind him to pay a debt. It must, then, rest on his own act, which confirmed the deed ; and if that does not bind him, he is not bound at all. Now where there is a deed made inter partes, one not a party, cannot sue on it; because with him, no contract is made by the deed, and if there were, assumpsit wo, ⅛ not lie, because the Defendant is liable in a higher action.
But let it be admitted, that assumpsit could be maintained. and the deed used merely as evidence of the contract, it is clear, that Dickinson could not maintain it, because he was a stranger to the consideration.
Dickinson lost nothing. He might even have sued Willis the next day, and forbearance for an indefinite time is no consideration
Another light in which the case ought to be viewed, arises from the construction of the contract, in which the covenants are evidently dependant; and finishing the vessel forms a condition precedent. It is clear, that Rodman. did not intend that Willis should get further in his debt. Willis was a bankrupt; and the object of Rodman was to secure himself, which he could only do by requiring that the vessel should be completed and delivered to him be-*91fpre he made the paytnent. But, according to the Plain-titl ’a 1O1 stru t¡on, Rodman would be liable although Willis never had completed or delivered the vessel.
Rod-■piards- ha fig taken possession afterwards, can make no* difference; for it Willis had sued on the contract, he could only recover by showing a performance on his part; though he might have recovered the value of the vessel by some other action. But if Dickinson recovers, it must be on the, contract; for thence alone can he defivq any claim against Rodman.
Seawell, J.
delivered the Opinion of the Court:
Suppose, in this case, Rodman had signed the deed, stiil no action could be maintained by Dickinson, for the contract was with Willis. Then what is the effect of his assent ? It can only be co-extensive with the deed. It may, however, be said, that it is to be inferred from the case, that Rodman promised Dickinson, still it recurs, that the promise must necessarily relate to the terms of the written contract; and when assumpsit is brought by Dickinson, it is in the very nature of such action to allow the Defendant the full benefit of all the equitable circumstances of the case, and these, in the present case, will be best ascertained, by enquiring what they would have been if Willis had brought the present action ; for it would be strange to say, that in a case where no consideration moved from Dickinson, either by his yielding any benefit, or sustaining any loss, that a promise made to him by one of the parties of a contract to which he was a stranger, should place him in a better situation than a party would stand. Indeed, it would seem strange, if he could, in such case, support any action.
If, then, Willis had brought his action of assumpsit, upon the assent of Rodman, what could he\iave recovered under the facts of this case ? Not the full price Rodman-was to pay 5 for he had not fully completed his contract, *92and it is evident from the written contract, that the mo- , . . . , • \ - ney was not to be paid till after finishing,the vessel. But the vessel was taken into possession by Rodman, and converted to his use. He, therefore, should not hold it and pay nothing, but must pay what she was -worth. That worth, for aught which appears, may be greatly below Rodman's own debt; and there can be little equity in taking’from the pocket of one losing creditor, and placing it in the pocket of another, where they are both equally unfortunate, and one has not contributed to the loss of the other. The present Plaintiff, therefore, cannot recover, and the rule for a New Trial must be absolute»