Fortune v. Brazier , 10 Ala. 791 ( 1846 )

GOLDTHWAITE, J.

When the agreement between the partners in running the stage line 'is looked to, there is no question of the intention of the different partners to give their consent, that suits should be instituted against each of them, in case of default, in the name of such 'person as the partners should afterwards designate for that purpose. This cause now turns on the point whether or not this intention can be carried into effect. It is a general rule, the action for the breach of a contract, must be brought in the name of the person having the legal interest in it. [Chitty’s Pl. 2.] And though some seeming exceptions exist, yet the rule has been held to extend so far as to prevent a suit in the name of the actual treasurer of commissioners, or the agent of an associa,tion, when the written contracts indicated such officer as the payee, without the insertion of his individual name. [Piggott v. Thompson, 3 B. & P. 85; Gilmore v. Pope, 5 Mass. 491.] With us, the doctrine of these adjudications has been fully recognized and carried out. Thus in Ewing v. Med-lock, 1 Porter, 82, the note was payable to the treasurer of a voluntary association, and this court considered the action was improperly brought by the person who at the date of the contract filled that office. To the same effect is Alston v. Hartman, 2 Al. Rep. 699, where the note was payable to the treasurer of a corporation. In these cases, although the promise was express to pay to the particular officer, yet the ef-fest of this was held to be a promise which invested the association in the one instance, and the corporation in the other, with the right of action. There is a class of cases where the promise was made to the agent by name, as wgll as description of office, in which the courts have considered the agents as invested with the legal interest in the contract, and have held the suits sustainable in their names. Such are the. cases of Bumpass v. Richardson, 1 Stewart, 16, and Grigsby v. Nance, 3 Ala. Rep. 347, and many other cases of a like nature are to be found in the books. [Buffon v. Chadwick, 8 Mass. 103 ; Binney v. Plumley, 3 Term. 500.] The reason which governs this class of cases is, that the parties by the act performed, have actually vested the legal interest to the debt in the person to whom the promise is made in writing, although in point of fact he is the mere trustee of others. In this particular it is that the present case differs from the class of decisions just referred to, as there is nothing more than the agreement to pay such a trustee when he shall afterwards be named; the express promise to pay to him is entirely wanting, and the agreement that he may sue, is made with other persons than himself. To permit effect to be given to a contract' of this nature, would lead in a great degree to the abrogation of the rule, that suits must be in the name of those having the legal interest in the contract, and parties would' frequently be substituted, without the slightest responsibility being imposed by the litigation, on those possessing the actual and equitable interest. We have met with no case in which it said, that parties, by contract between themselves, may determine that suits in regard to it shall be brought in the names of other persons, having either no interest, or but a partial one in the subject matter, and we hence conclude that such a contract is inoperative, unless accompanied by some further action.

Conceding the utmost extent which can be claimed for the power said to be given by the defendant to the plaintiff, to sue on the contract made, between the partners, it caúnot, we think, be intended the plaintiff was thereby invested with the authority to commence suits which, in law, he would not be able to sustain. When therefore, it is shown that no suit upon the contract could be maintained by the defendant, it follows that no injury could result to the plaintiff from its dismissal. Independent of the motives influencing the conduct of the defendant in dismissing the suits instituted in his name, by the plaintiff, if the act did not, nor could, legally prejudice the latter, there is no ground on which the present action is sustainable.

This is the conclusion of our minds, and as this disposes of the cause, it is unimportant to examine the other questions presented.

Judgment affirmed.