United States v. Kennan , 1 Pet. C.C. 168 ( 1815 )

' WASHINGTON, Circuit Justice.

This cause turns upon a question of property'. The foundation upon which the claim of the United States is rested, is the agreement of the 25th of February, 1815, between Thomas Parker and the commissary general, whose name even is not mentioned in it. There is nothing relied upon, but conjecture, to connect the United States, in any manner, with this transaction. It is not stated in the agreement, that the commissary general contracted as an agent of the United States, or on his own private account; which he might well do, and his title be used as a mere description of the person. It is not stated, that the consideration passed from the United States, or was intended for their use. The only interest which distinctly appears in the agreement, different from that of.the commissary general is that of Robert Earp; who it would seem, together with the commissary general, was a creditor of Parker. The assignment, however, is made to the commissary general, in whose name the suit might have been brought. But if it appeared that this contract was made for the benefit of the United States; it appears also, that it ^was made for that of Robert Earp; and consequently, the suit could, upon no principle, be maintained, for the whole of the property in the name of the United States. If an agreement be made with A., to pay money, or to do any act for the use of B. and C., the suit may be maintained in the name of A., but certainly not in the name of C. or B., singly. So far as there is any evidence given in this cause, of property in the goods in question, it proves it to be exclusively in Earp. The name of the commissary general is not stated, nor does it appear that he knew of, or had any agency in making this contract. It was written by Earp; he alone appears in the transaction, from beginning to end; and the notice of the 25th of February to the defendant, is signed by him; in which he distinctly claims the goods mentioned in the assignment, as his own property.

Upon the whole, the court has no hesitation in directing a verdict to be found for the defendant.

Verdict for defendant.