Bryant v. Wells , 1875 N.H. LEXIS 21 ( 1875 )

FROM GRAFTON CIRCUIT COURT. In making the contract for use and occupation, upon which this suit is brought, James F. Bryant acted as the agent of the plaintiff, Lucinda M. Bryant, and one Cummings, who, it is to be assumed, were tenants in common of the premises demised. The fact of his agency was not disclosed at the time of the contract. It is the ordinary case of a contract not under seal, made by an agent in his own name on behalf of an undisclosed principal; and it is not to be doubted that an action may be maintained upon it in the name of the principal. See notes to Paterson v. Gandasequi, Addison v. Gandasequi, and Thompson v. Davenport., 2 Sm. Ld. Cas. 348, et seq.

But this was obviously one single entire contract between the defendant on the one hand, and Lucinda M. Bryant and Cummings, represented by their common agent, James F. Bryant, on the other. The action therefore should have been brought either in the name of the agent, James F. Bryant, or in the name of this plaintiff and Cummings, jointly. It is clear that it cannot be maintained in the name of this plaintiff alone. Nor is the fault one of which the defendant could avail himself, only by plea in abatement, as the plaintiff's counsel seems to suppose. The rule, as I understand it, has always been, that in actions ex contractu, where it appears on the trial that there are other parties who ought to have been joined as plaintiff, the defendant may avail himself of the objection as a ground of nonsuit as a variance upon the general issue. Pitkin v. Roby, 43 N.H. 138, 139, and authorities cited. In actions ex delicto, the rule is different; the objection must be taken by plea in abatement. Gould Pl., ch. 5, sec. 111. The remark of Mr. Justice SARGENT, in White v. Brooks, 43 N.H. 409, to the effect that a nonjoinder of plaintiffs in that case (which was assumpsit) could only be taken advantage of by plea in abatement, would seem to be an inadvertence, inasmuch as the same learned judge had accurately laid down and clearly explained the rule, as given in all the books, in Pitkin v. Roby, reported in the same volume at page 138. Webber v. Merrill, 34 N.H. 202, stands well within the rule, because that was an action of tort, trespass quare clausum fregit.

The result is, that the action cannot be maintained in the name of the present plaintiff alone, and the writ must be amended according to the motion, or the action fails. Pitkin v. Roby is a direct authority to the point that this amendment should be allowed under the statute. The circuit court was therefore right in allowing it, and all questions of costs and terms must be settled there.