Nabors v. Shippey , 15 Ala. 293 ( 1849 )

COLLIER, C. J.

Ordinarily, an agent contracting in the name of his principal, is not entitled to sue, nor can he be sued on such contracts. Thus an agent selling goods for his principal, and in the name of the latter, cannot maintain an action for the purchase money. Where A agreed in writing to pay the rent of certain tolls, which he had hired for three years, of certain commissioners for drainage, “ to the treasurer of the commissionersHeld, that the promise was to the commissioners, to pay the rent to the person whom they should appoint from time to time to receive it, and that an action was maintainable by the treasurer in his own name. Piggott v. Thompson, 3 Bos. & Pul. Rep. 147; Ewing v. Medlock, 5 Port. Rep. 82; Sargeant v. Morris, 3 B. & Ald. Rep. 276; Bowen v. Morris, 2 Taunt. R. 374.

The cases in which the agent has personal rights, and may maintain an action on a contract, .in which his principal is interested, are thus stated. “First, where the contract is made in writing, expressly with the agent, and imports to be a contract psrsonally with him, although he may be known to act as an agent. Secondly, where he is the only known or ostensible principal, and therefore is, in contemplation of law, the real contracting party. Thirdly, where by the usage of trade, or the general course of business, he is authorized to act as the owner, or as a principal contracting party, although his character as agent is known. Story on Ag. <§> 393. The facts recited in the record, do not bring this case within au exception to the general rule, which declares, that an agent shall not sue on contracts made by him in the name, and on the behalf of the principal. The contract was verbal, the consideration for the defendant’s promise was the release of property which had been levied on to satisfy a judgment in favor of the principal, as the defendant very well knew. Upon principle, as well as authority, this»promise inured to the principal, and he alone could sue for its breach.

A demurrer to the statement would not have been sustained — the statement, being a mere condensation of the common counts in assumpsit, might have been supported by a promissory note, or perhaps other writing indicating a promise to the plaintiff, as the agent of Kirby, in totidem verbis. The plea of non assumpsit put in issue the right of the plaintiff to maintain his action, and devolved upon him the bur-then of making it out by proof adapted to his allegation. This was not done by showing, that the defendant was indebted to Kirby on a promise made to the plaintiff, as his agent. _ The circuit court ruled the law adversely to this view — the judgment is consequently reversed, and the cause remanded.