Brown, Brawley & Co. v. Bostian , 51 N.C. 1 ( 1858 )

^* Decided at last term. The plaintiffs declared on the following written instrument:

"This contract and agreement, entered into this 17th day of October, 1855, between John L. Brown for Brown, Brawley Co., of the town of Charlotte, and State of North Carolina, and David Bostian of the county of Alexander, and State aforesaid, witnesseth, that the said Bostian, on his part, contracts and agrees to furnish Brown, Brawley Co. with one hundred barrels of good merchantable flour, to be delivered in lots of twenty barrels during each month, commencing on 1st of November next. Said Brown, for Brown, Brawley Co., contracts and agrees to pay to the said Bostian seven dollars per barrel for each barrel so delivered. It is mutually agreed between the parties, that any act of God shall nullify the above contract and agreement. Witness our hands and seals and day first above written."

BROWN, BRAWLEY Co. [seal.]

DAVID BOSTIAN, [seal.]

The breach assigned was the non-delivery of the flour. It was proved that said Brown, was one of the firm of Brown, Brawley Co., and that the covenant was executed by him and David Bostian.

The defendant objected that the action could not be maintained in the name of Brown, Brawley Co., but that it should have been brought in the name of John L. Brown alone.

The question of law was reserved by the Court, and under his instruction, the jury found for the plaintiffs.

Afterwards, the Court, on consideration of the question of law reserved, gave judgment for the plaintiffs.

The defendant appealed. The only question presented is, whether the action, upon the instrument declared upon, was properly brought in the name of Brown, Brawley Co., and we think that upon both principle and authority, it was. According to the express terms of the written agreement, the defendant bound himself to deliver the flour to the plaintiffs, and the agreement is signed in their name, and sealed with a seal purporting to be theirs. It is true, that in the body of the instrument, the contract purports to be made between John L. Brown for the plaintiffs and the defendant; and John L. Brown, for the plaintiffs, promises to pay the defendant for the flour upon its delivery. Brown, as a member of the firm, had full authority to make the contract, but not to bind the partnership by a seal. Had the defendant performed his part of the contract by the delivery of the flour, he might have found a difficulty in suing any person upon this written agreement. He could not have maintained an action upon it against Brown alone, because it was not signed in his name, nor could he have sued the partnership upon it, because Brown was not authorised to put their seal to it. The defendant, however, would not have been without an adequate remedy, as he could have brought an action against them for goods sold and delivered, and used the written instrument as evidence of the price and terms of payment; Delius v.Cawthorn, 2 Dev. Rep. 90; Osborne v. The High Shoals Mining andManufacturing Company, 5 Jones' Rep. 177. There was nothing to prevent the defendant from binding himself, under seal, by the instrument in question, and the only difficulty is to ascertain the person or persons to whom he did so bind himself. We see no good reason, either technical or otherwise, why he should not be held to have bound himself to the firm, the present plaintiffs. Had Brown signed and sealed the instrument in his own name, it might have presented the technical difficulty of being a deed inter partes, in which no person but a party could sue upon it; and so are all the numerous authorities referred to by the defendant's counsel. But for the reasons already stated, this cannot be regarded as a deed inter partes. It is, in legal effect, the deed of the defendant, and the written evidence of a simple contract on the part of the plaintiffs; and it is well settled, that upon such an instrument, one party may be sued in debt or covenant as the case may require, while the other can only be sued in assumpsit;Whitehead v. Riddick, 12 Ire. Rep. 95, is a case in point in favor of the action.

There is no error.

PER CURIAM, Judgment affirmed.