Brice v. King

Weight, J.,

delivered the opinion- of the Court.

This is an action of assumpsit brought b.y John Gr. King, William Gr. Peck, Samuel W. Hansford and Greorge C. Longhorne upon the following instrument: “James T. Brice has this day sold to N. B. Brice, agent of John King, Peck, Hansford & Co., of Washington ■ county, Va., from 80 to 100 head of fat hogs, to weigh 200 pounds and upwards, (good merchantable hogs ;) the said hogs to be weighed at Brice’s pen from the 10th to the 30th November, 1855; the said company to execute a note and such security as said Brice may ask, at $4.25 per hundred pounds, sixty days after date. October 9, 1855.

“JAMES T. BRICE,

“N. B. BRICE.”

The plaintiffs in their declaration aver that this contract was made by James T. Brice, with them, by the name and description of John King, Peck Hansford & Co., by their agent, N. B. Brice. It is now assigned for error that this declaration is defective, and that the plaintiffs’ demurrer to the defendant’s pleas should have been sustained to it, because it introduces into the suit, as plaintiffs, new parties that do not appear in the contract. This objection is untenable. Whether the plaintiffs be co-partners, or a company of individuals trading under this company name, if the contract were really made with them as they allege, they would be jointly interested in it and could maintain the suit. Whether this be so or not is a question of evidence and cannot be reached by the demurrer.

If the instrument be not under seal it is well settled that the party for whose benefit it is made may sue thereon in his own name, although the engagement be not directly to, or with him. And the same rule applies to -a contract made with an agent. 1 Chitty’s Pl., 4 and 6.

■ It is objected, also, that this contract is not obligatory on James T. Brice, and that he was not bound by it to deliver the hogs. In this construction of the instrument we cannot agree. The evident meaning is otherwise.

The judgment is affirmed.