North British & Mercantile Insurance v. Speer , 7 Ga. App. 330 ( 1910 )

Powell, J.

The Eagle Eire Insurance Company of New York issued a policy to Speer, covering his property. Later the Eagle Company, desiring to retire from, business, made a contract with the North British & Mercantile Insurance Company whereby the latter company, in consideration of seventy per cent, of the unearned premiums of the former companjq agreed to reinsure and indemnify it against claims for fire losses under the-policies which had been issued by the Eagle Company prior thereto, and which should be issued by it for a limited time in the future; and agreed to adjust fire.claims with the policy-holders as they should occur, and to pay them off. The plaintiff was not a party to this contract. Later his property so insured was destroyed by fire, and he sued the North British & Mercantile Company, setting up the foregoing facts. The case comes here on the overruling of a demurrer to the petition.

Only a technicality of pleading is involved in what we are here deciding; we do not pass on the merits. The defendant says that the plaintiff had no right to sue on the contract of reinsurance. We think that the point is well taken, irrespective of whether the plaintiff has any beneficial interest in the contract of reinsurance or not. 'The Civil Code, §4939, provides, “As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent.” When A makes a contract with B for the benefit of C, or when O is equitably or justly entitled to claim the benefit of a contract made by A with B, C’s right is to sue in the name of A, as nominal plaintiff suing for the use ,of C. In such cases C has the right to use A’s name, even without the latter’s consent. Fain v. Garthright, 5 Ga. 6; Calhoun v. Tullass, 35 Ga. 119 (2), 124; Kennedy v. Gelders, ante, 241 (66 S. E. 620). If this plaintiff stands in any such relation to the contract of reinsurance as to he legally considered as having a beneficial interest therein (a point not now decided), it will be necessary for an amendment to be made, making the Eagle Insurance Company party plaintiff, before the action can proceed in the court of law in which it has been instituted. Civil Code, §5105; Estes v. Thompson, 90 Ga. 698 (17 S. E. 98). Many States allow such actions to be brought directly; Georgia does not. Empire State Insurance Co. v. Collins, 54 Ga. 376. Judgment reversed.