[Hill's Administrator v. Huckabee's Administrator.] action on a point of form, should sustain another on a like point." In Ogden v. Rowley, 15 Ind. 56, the suit was upon an award. The defense sought to impeach the award for mistake, fraud, &c. It was replied, by way of estoppel, that defendant, in another action between the same parties, founded upon the same cause of action upon which the award sued on was founded, had pleaded in bar of that action the award now sued on, and had thereby defeated said action. It was held, that the defendant, having had the benefit of it as a valid award in that suit, can not be permitted to impeach it in this. In Hooker v. Hubbard, 102 Mass. 239, a suit had been brought on a promissory note. The defendant pleaded, that he had given another note in renewal of it; and thereby defeated the action. He was then sued on the renewal-note, and attempted to defend on the ground that the second note was given on a condition which had not been fulfilled. It was ruled, that the plea and judgment in the former suit estopped him from making that defense. The following cases assert the same principle: State National Bank v. N. W. U. Packet Co., 35 Iowa, 226; Crockett v. Lashbrock, 5 T. B. Monroe, 530; Milton v. Munford, 3 Hawks, 483; Martin v. Ives, 17 Serg. & R. 364; Polhill v. Walter, 3 B. & Ad. 114; Hall v. White, 3 C. & P. 136; Doe, ex dem. v. Lambly, 2 Esp. 635; Trustees v. Williams, 9 Wend. 147. The following cases, rightly understood, do not conflict with these views. Some of them rest on the phraseology of their statutes, and the others have peculiar features which take them out of the operation of the rule: Packard v. Swallow, 29 Me. 458; Donnell v. Gatchell, 38 Me. 217; Sherman v. Barnes, 8 Conn. 138; Jenkins v. Bell, 2 Rich. Eq. 144; Crane v. French, 38 Miss. 503. If it be contended that the principle above stated should not be applied to this case, because the effect will be to compel the payment of the debt to one not the administrator, and therefore not authorized to receive the money; the answer is twofold: first, it was his own act, by which the defendant placed himself in this condition; and second, if he defeats this action, he can not be compelled to pay the debt to any one, for he has already defeated the action by Mrs. Hill, who, according to his present contention, is alone authorized to sue and recover. the estoppel can not act more oppressively in this case, than it may in another well-settled class of cases. If one execute a written promise or contract to another, styling him executor or administrator, this estops him from pleading ne unques executor; and a recovery may be had on such contract, in favor of But [City of Huntsville v. Huntsville Gas Light Co.] one who never was such personal representative.-1 Brick. Dig. 984. § 988. Nelson v. Boynton, 54 Ala. 368, is not opposed to these views. The Circuit Court erred in sustaining defendant's demurrer to plaintiff's replication to the plea of ne unques administrator, and also in the charge given. Reversed and remanded. 70 190 128 229 70 190 135 417 70 190 137 295 70 190 141 504 City of Huntsville v. Huntsville Gas- Bill in Equity to enforce Contract for Transfer of Stock in 1. Contract by agent in his own name, and under seal.—R. W. C. owning about one-third of the capital stock in an incorporated gas-company, which had ceased to do business, and R. E. C. desiring to purchase a controlling interest in the stock of the company, with a view to revive and enlarge the business; the two parties entered into a written contract, to which their individual names were subscribed, and their seals affixed, purporting to be made between R. W. C. as party of the first part, and R. E. C. as party of the second part, and containing these stipulations: "the said R. W. C. hereby obligates himself to procure and effect, within thirty days from this date, the transier to said R. E. C. of all the capital stock in the said gas-company, and to procure, within the same time, a conveyance to said R. E. C. of the lots" on which the gas-works were erected; "and the said R. E. C., on condition that said transfer and conveyance of title are procured and made within said thirty days, and in consideration thereof, hereby agrees and promises to pay to said R. W. C. in cash, immediately on being notified that said transfer and conveyance have been made as agreed on, the sum of $1,000, and further agrees and undertakes to re-transfer to said R. W. C. stock in said company" to a specified amount, not exceeding one-third of the stock procured to be transferred to said R. E. C.; “and when said transfer and re-transfer of stock are effected as above provided, it is agreed that the said R. E. C. will, within a reasonable time, proceed to repair and put in operation the gas-works of said company," and shall be entitled to new stock to the amount of his expenditures; "it being hereby agreed, that when said transfer and re-transfer of stock are made as above provided, the said R. E. C. and R. W. C. will, as the stockholders in said company, provide by resolution for the increase of stock, and for the issue of new stock to the said R. E. C. to the amount of his expenditures," &c. Held, that this was the personal contract of R. W. C., and carefully excluded the idea that he was acting as the agent or representative of the other stockholders in the old company. 2. Same; transfer of stock held by municipal corporation, under resolution of board of aldermen.—R. W. C. was, at the time said contract was entered into, the mayor of the city in which the gas-works were located, and which owned some of the capital stock in the company; and he submitted to the board of aldermen a written communication relative to the [City of Huntsville v. Huntsville Gas Light Co.] contract, advising the transfer of the city's stock as provided by the contract, representing that it bound R. E. C. to pay $1,000 to the company, to be applied in payment of its debts, and to "issue new stock to the present stockholders." By resolution of the board, entered on its minutes, the transfer of the city's stock to R. E. C., "in compliance with contract entered into between him and R. W. C.," was authorized and declared, and the mayor was instructed to make the proper assignment on the books of the company in his official capacity; and it was so made by R. W. C. officially. Held, that the transfer being authorized by the resolution of the board, and duly made as authorized, the city could not complain that the contract was misunderstood or misinterpreted, R. E. C. not being a party to the error or mistake. 3. Action by principal, on contract made by agent.-Although the general rule may be, that where an agent, having proper authority, contracts in his own name for the benfit of his principal, the latter, if unknown, and, perhaps, also if known or disclosed to the other contracting party, may, at his election, sue on the contract in his own name; but it is a recognized exception to this rule, that where the agent has been allowed to contract in his own name, without notice of his agency, the principal takes the contract subject to all the rights and equities available to the other party as against the agent if he were suing. APPEAL from the Chancery Court of Madison. The Huntsville Gas-Light Company was organized, under the general law regulating the organization of private corporations, on the 4th April, 1856, and procured a special charter, or act of incorporation from the General Assembly, on the 21st February, 1860. It erected gas-works, laid pipes in the streets of Huntsville, and continued to do business as authorized by its charter until some time during the year 1862, when, in consequence of the war then flagrant, it ceased or suspended operations. At that time, its capital stock consisted of 293 shares, at the nominal value of $25 each; of which shares, the city of Huntsville owned 54, Robert W. Coltart owned 110, and the others were distributed among about eighty other persons. On the 13th June, 1867, with a view to the re-organization of the company, or to the erection of new gas-works in Huntsville, a contract was entered into between said R. W. Coltart and R. E. Coxe, which, as reduced to writing and signed by both parties, was in these words: "These articles of agreement, made and entered into this 13th day of June, 1867, by and between Robert W. Coltart, of the city of Huntsville, Alabama, of the first part, and Robert E. Coxe, of the city of Poughkeepsie, New York, of the second part, witnesseth, that in consideration of the covenants and agreements hereinafter made by the said Coxe, the said Coltart hereby obligates himself to procure and effect, within thirty days from this date, the transfer to said Coxe of all the capital stock in the Huntsville Gas-Light Company, and also to procure, within the same time, a conveyance to said Coxe of the title to lots Nos. 11 and 12 in the city of Huntsville, sold by [City of Huntsville v. Huntsville Gas Light Co.] the M. & C. R. R. Co. And the said Coxe, on his part, on condition that said transfer of stock and conveyance of title are procured and made within said thirty days, and in consideration thereof, and of the other agreements in these articles expressed, hereby agrees and promises to pay to the said Coltart, in cash, immediately on being notified that said transfer and conveyance have been made as agreed on, and within said thirty days, the sum of one thousand dollars. He further agrees and undertakes to re-transfer to said Coltart stock in said company to the amount of $2,500, provided that does not exceed one-third of the entire amount of stock in said company transferred to said Coxe; and if $2,500 should be more than one-third of the entire amount of stock, then said Coxe is to re-transfer to said Coltart one-third of the stock so transferred to him by Coltart. When said transfer and re-transfer of stock are effected as above provided, it is further agreed the said Coxe will, within a reasonable time thereafter, proceed to repair and put in order and operation the gas-works of said company; and it is expressly agreed and understood, that the said Coxe is to be entitled to receive, and is to have issued to him, as the expenditures are made, new stock in said company, to the amount of any sum or sums he may expend in repairing, improving, or extending said gas-works, or otherwise adding to or improving the property of said company; it being hereby agreed, that when said transfer and re-transfer of stock are made as above provided, the said Coxe and Coltart will, as the stockholders in said company, provide by resolution for the increase of stock, and the issuance of new stock to said Coxe to the extent of expenditures that may be incurred by him for the purpose above mentioned. The obligation of said Coxe to repair and put in order and operation the said gas-works is only binding upon said Coxe in his lifetime, and does not bind his estate after his death. And to secure the performance of the undertakings and agreements herein made, each of the parties hereto binds himself to the other in the penalty of one thousand dollars, to be forfeited by the said parties respectively on the failure of such party to perform the agreements herein expressed. In witness whereof, the said parties have hereto set their hands and seals, this 13th day of June, 1367. "ROBERT W. COLTART [Seal.] "ROBERT E. COXE [Seal.]" Of the $1,000 which Coxe bound himself to pay by the terms of this contract, $400 were paid on the 10th July, and $600 on the 1st August. A credit was entered by indorsement on the contract, for each of these payments, signed Robert W. Coltart; and in the last credit or receipt these words were added: "And inasmuch as I have not transferred to said Coxe all of the capital stock of the Huntsville Gas-Light Company, it is expressly [City of Huntsville v. Huntsville Gas Light Co.] agreed, that said Coxe shall be bound to re-transfer to me only so much of said stock transferred, or which shall be transferred to him under the within contract, as, with the stock not so transferred to him, shall amount to one-third of said capital stock; it being the intention of the parties, that said Coxe shall retain two-thirds of the entire capital stock of said company. At the time this contract was entered into, said Robert W. Coltart was the mayor of the city of Huntsville; and on the 18th June, 1867, he submitted to the board of aldermen a written communication in reference to said contract, in these words: "I call your attention to an agreement entered into between Robert E. Coxe and myself, in regard to the Huntsville GasLight Company. Said Coxe proposes, that if the stockholders will surrender to him the stock of said company, he will pay one thousand dollars to the company, to be applied to the payment of debts of the company; issue new stock to the present stockholders, to the amount $1,500, and erect new works. The proposition has met with the approval of the stockholders who have been advised with. I recommend that you transfer the stock owned by the city, in compliance with this agreement;" signed Robert W. Coltart. At the same meeting of the board of aldermen, on consideration of this communication, the following resolutions were adopted by them: "Resolved, that we will, and do hereby, transfer to Robert E. Coxe the corporate stock of the city of Huntsville in the Huntsville GasLight Company, in compliance with a contract entered into between Robert W. Coltart and said Coxe." “Resolved, that the mayor, or his successor in office, be, and hereby is, empowered to assign said stock to said Coxe, according to the regulations of said company." Acting under the authority thus conferred, Coltart assigned to said Coxe, on the books of the company, the fifty-four shares of stock held by the city. The assignment was in these words: "By authority and in pursuance of a resolution of the board of mayor and aldermen of the city of Huntsville, adopted on the 18th day of June, 1867, I, Robert W. Coltart, mayor of said city, do hereby transfer to Robert E. Coxe fifty-four shares of the capital stock of the Huntsville Gas-Light Company, being all of the said stock owned by the corporation of the city of Huntsville; the certificates for which said shares have never been issued, or, if issued, have been lost, and can not be produced. In witness whereof, I hereto set my hand, and affix the seal of said corporation, this 25th day of July, 1867." This was signed, "R. W. COLTART, mayor;" and the words added, "Sigued and sealed in my presence, R. B. NORVILLE, secretary." On the 10th November, 1876, the mayor and aldermen of Huntsville, as a corporation, filed the bill in this case, setting |