Supreme Court of Louisiana, 1846

Campbell v. Nicholson

Supreme Court of Louisiana · Decided January 15, 1846 · Martin, Morphy

12 La. 428

Counsel

Robinson, for the plaintiffs., H. D. and A. N. Ogden, for the appellants., Robinson, for a re-hearing.

Opinion of the Court

Morphy, J.

The petitioners, proprietors of the Circus street Infirmary in this city, seek to recover of the defendants $802 50. They allege, that, on the 28th of August, 1841, they entered into a contract with the said Nicholson and Gardiner for the reception and treatment of such patients as might be sent to their *432infirmary by the said defendants, or others, in pursuance of the agreement, on the terms and conditions therein specified. That under this agreement, the said Nicholson and Gardiner became indebted to them in a large amount, and that they are still so indebted in the sum claimed. They annex to their petition their contract with the defendants, and an open account, both which documents they pray to be taken as a part thereof. The defendants denied their indebtedness to the plaintiffs, admitted that they had entered into the contract attached to their petition, but averred that, in making it, they acted merely as the agents of the corporation known as the New Orleans Samaritan Society. There was a judgment below against them, and they appealed.

In the written agreement entered into between the parties, the defendants, as a committee appointed for the purpose by the New Orleans Samaritan Society, contracted with the plaintiffs. For and 'in consideration of $> 1 25, per diem, to be paid to the plaintiffs, the latter obliged themselves to receive all the patients that might be sent to their infirmary by the said society, to give them proper medical treatment, to provide a sufficient department in their infirmary for the reception of these patients, to be called “ The Samaritan Ward,” which at all times should be subject to the inspection of any committee appointed for the purpose, &c., and the account sued on is made out against the Samaritan Society. Thus, by these documents, which we must consider as a part of the petition, it appears, that the defendants acted as agents, gave the name of their principal, and were understood by the plaintiffs as having acted in that capacity. It is not alleged that they engaged personally to pay for the patients sent to the plaintiffs’ infirmary, that they contracted without authority, or exceeded that which they had ; nor that they acted for a non-existing principal against whom no resort could be had; nor is there any other document tending to show that these defendants, either expressly or impliedly, made themselves personally liable, although they acted as agents. Under these pleadings, which show no right of action against the defendants personally, no evidence was, perhaps, strictly admissible to establish such personal liability. No objection, however, having been made, evidence was admitted to show that, at,the time the contract was entered into, the *433society or association lor which the defendants acted, had no legal existence as a corporation, and that its members were unknown. From this evidence it appears, that some time in 1840, or before, several benevolent persons associated themselves together for the purpose of extending relief to the indigent during the prevalence of epidemics, in this city, and were incorporated under the name they had assumed, of “The Samaritan-Society of New Orleans.” Being dissatisfied with the charter then given to them, the members of the Society, at a meeting held on the 12th of August, 1841, resolved to continue under their original constitution, until the necessary amendments to their charter could be obtained. These were made by a supplementary act, passed on the 8th of February, 1842, from which time it is believed that the society has acted under its charter. A witness says, that the society is composed of about sixty members, supposed to reside in the city ; that forty have signed the constitution ; but that the new members never signed it, and that no exact list or roll of the members has been made out. It is urged that, as the defendants acted, for a corporation which had no legal existence, and they have not made known the names of the persons composing it, they must be personally liable, because no resort can be had against their principal. The defendants being sued in their individual capacity, it was useless and unnecessary for them to give the names of the members of the Samaritan Society. Had they been sought to be made liable, as members of it, they would have had to name the other members, in order to be made responsible only for their proportion of the debt. Although not incorporated at the dale of the contract sued upon, the -Samaritan Society existed, and was well known to exist; it could acquire and possess property, make contracts, <fcc., in the manner pointed out by the Civil Code, art. 437. It cannot, therefore, be said to be an unknown principal, against whom no resort can be had, however difficult and troublesome that resort may be. Whenever a question arises, as to the individual liability of persons acting avowedly as agents for others, the great inquiry must be, to whom was the credit knowingly given, according to the understanding of both parties. Story on Agency, § 288. This can be properly ascertained, only bv an examination of the contract itself, of the ’ *434circumstances under which it was made, and the manner in which it was carried out by the parties, and appears to have been understood, between them. There is nothing in the written agreement from which it can be inferred, that the plaintiffs looked to the defendants, personally, for remuneration. The existence of the Samaritan Society, was notorious, and to none better known than to the plaintiffs. Prom the minutes of the proceedings of the society, which they themselves gave in evidence, it appears, that the plaintiffs had already had’dealings with that association, and had made a settlement with it for a previous account, shortly before the date of the contract sued on.* It is then but reasonable to suppose, that when they were soon after called upon by a committee of the same society, to make a contract for the patients it might send to their infirmary, the plaintiffs looked to the society itself for remuneration, and not to those who held themselves out only as its temporary agents. They accordingly debited the Samaritan Society, and made out against it the account upon which they now sue. In this account we find two credits given to the society ; one for $ 120, paid to the plaintiffs in cash, on the 2d of July, 1842, after its final incorporation ; and a further credit of $450, which is stated to be an amount due to the Samaritan Society, by Dr. Mackie for rent. Thus it appears, that while the society was sending patients to the infirmary, under the contract made through its committee, Dr. Mackie, one of the plaintiffs tenanted property from it, and accordingly deducts the debt he owes, from that due by the society under the contract. How then can it be pretended, that the defendants must be personally liable, because they acted for an unknown principal, to whom the plaintiffs did not look, and against whom they can have no recourse. The doctrine that a person contracting as agent, is nevertheless personally bound, where there is no principal to whom resort can be had, proceeds upon the pre*435sumption, that he who is able to contract, and does contract in his own name, although he is agent for another who is incapable of contracting, intends to bind himself, otherwise the contract would be without any validity. Story’s Agency, § 280, 281. No such presumption exists in the present case, as the association, whose agents the defendants were, was capable of contracting, and did contract more than once with the plaintiffs themselves. From the acts of the latter, and the evidence in the case, we are satisfied, that credit was given to the members of the Samaritan Society, and not to the defendants.

Robinson, for a re-hearing.

The question to whom the credit was given, must be decided by the written contract of the parties, where one exists. Such a contract as the one sued on, with

such words of description in the body of the instrument,' but signed in the individual names of the parties, is their individual •contract — not their contract as agents. There is no case on this point in the Reports of this State ; but the New York, Massachusetts, and English decisions are conclusive.

In Taft v. Breioster et al. (9 Johns. 334,) the defendants were sued on a bond in which, “by the name and description of Jacob Brewster, Thaddeus Loomis and Joseph Coats, trustees of the Baptist Society of the town of Richfield," they acknowledged themselves to be bound, &c. The bond was signed, “ Jacob Brewster, Thaddeus Loomis, and Joseph Coats, Trustees of the Baptist Society of the town of Richfield.1' On demurrer by defendants, that the bond was executed by them in a corporate, and not in their individual capacity, the court decided : “ That the bond must be considered as given by the defendants in their individual capacities. It is not the bond of the Baptist Church; and if the defendants are not bound, the church certainly is not, for the church has not contracted either in its corporate name, or by its seal. The addition of trustees to the names of the defendants is, in this case, a mere descriptio personarum''

It is, therefore, ordered and decreed, that the judgment of the Commercial Court be reversed, and that ours be for the defendants as in case of nonsuit; the costs to be paid by the appel-lees in both courts.

The entry in the minutes, to which the court refers, is in these words; under the date of—

“ Mr. Nicholson reported verbally, that a settlement lias been made by him for the amount due Dr. G. W. Campbell, partly in cash, and partly by an order on Dr. J. M. Mackie, which Dr. Campbell has consented to receive.”

070rehearing

Same Case — Application por. a Re-hearing.

White et al. v. Skinner, (13 Johns. 307,) was an action against Skinner, individually, on a contract purporting to have been made between the plaintiffs, Skinner, and two others, as directors of the Granville Cotton Manufacturing Company; but the contract was signed and sealed by Skinner alone, as follows : “For the Directors, Reuben Skinner, [l. s.]” Skinner pleaded that the agreement was executed by him as a director and agent for the company, of which plaintiffs had notice. On demurrer, the court said: “The defendant represented himself, and assumed to act, as the agent of the directors of the Manufacturing Company. He is now sued in his private, individual capacity; and to exonerate himself, he was bound to aver, and prove, that he had authority to seal for his co-directors. The covenant is not to be regarded as a nullity. The plaintiff relied on this specialty security. If it does not bind the directors, for whom the defendant represented himself as agent, then it is personally obligatory on the defendant alone; and it is incumbent on the defendant, not on the plaintiffs, to aver and prove the authorization, if any, by which the defendant contracted for the company; he has no right to call on the plaintiffs to prove either the affirmative or the negative.” Judgment for plaintiffs.

The case of Stone v. Wood, (7 Cowen, 453,) was an on a charter party of affreightment, which recited that it was made “between Captain G. P. Stone, part owner of the good ketch George, whereof G. P. Stone is master, on the one part, and Timo. N. Wood, as agent of J. & R. Raymond,” &c. The instrument was signed :

“Timo. N. Wood, [l.s.]

“ G. P. Stone, [l. s.]”

This case was decided on a demurrer. The court, per Savage, Ch. J., say: “The question is whether the defendant is liable personally on this contract. That J. & R. Raymond are not liable on the contract, there can be no doubt. When an agent, or attorney contracts on behalf of his principal, he must do so in the name of the principal, or the latter is not bound. Combe’s case, 9 Coke, 76-7. When any one has authority to do an act, it should be done in the name of him who gives the authority, not in the name of the attorney. All the subsequent cases agree in the law as thus laid down by Coke. There is no contradiction on the subject. The contract, then, not being with the Raymonds, is it obligatory on the defendant, oris it merely void ? The defendant describes himself as agent of J. & R. Raymond. Had the contract been in the name of the Raymonds, and by their authority, it would have been their contract; and there would have been no liability upon the agent. But the agent, to excuse himself, should show a liability upon his principal; a doctrine which has been often recognized by this court. 13 Johns. 66. 19 lb. 63. 1 Cowen, 636. A leading case on this subject is White v. Skinner, 13 Johns. 307. Whatever authority the signer may have to hind another, if he does not sign as agent or attorney, he binds himself, and no other person. 11. Mass. 29. The words, as agent, do not constitute the defendant the agent of the Raymonds. At most, they are mere description.” Judgment for the plaintiff.

In Hills v. Bannister et al. (8 Cowen, 31,) the action was on a joint and several promissory note payable to plaintiff, signed by the defendants, with the addition, “ Trustees of Union Religious Society, Phelps.” The defendants proved the society to be a corporation, and objected that the plaintiff had no right to recover against the defendants, they having signed as agents for the society. The court say: “ The objection that the defendants were not liable upon the note, having signed in the character of trustees, was properly overruled. • The addition of trustees, &c., is a mere descriptio personarum.”

Barker v. The Mechanic Fire Insurance Company, (3 Wendell, 94,) was an action on a note; andón demurrer that the notéis t.he note of John Franklin and not of the defendants, the court say: “From the description in the declaration the note may be in the following form:

“ 11, John Franklin, President of the Mechanic Fire Ineurance Company, promise to pay.’ &c. (Signed) “ ‘ John Fuankxin.’

“ Or in this form:

“ ‘ I promise to pay,’ &e. (Signed)

“‘John Franklin.’

“ ‘ President of the Mechanic Fire Insurance Company.’

“ In neither form can this be said to be the note of the company. He does not say that he signs for the company ; he describes himself as the president of the company, hut to conclude the company by his acts, he should have contracted in their name, or at least in their behalf. In Stone v. Wood, the defendant described himself ‘ as agent of J. dp R. Raymondbut he did not contract in their name ; and it was held that he was personally liable. So here, though the president, according to the averment in the count, had authority to make a note for the defendants, yet he does not appear to have done so, in a manner to be obligatory upon them.” The demurrer was sustained.

These decisions are sustained by the Massachusetts cases. The case of Tippets v. Walker et al. (4 Mass. 595,) was an action on an agreement purporting to have been made “ between the defendants, a committee appointed by the direction of the Middlesex Turnpike Corporation, to contract for making the turnpike road, of the one part, and the plaintiff of the other part.” It was signed and sealed by the defendants in their individual names. The defendants 'were held! to be personally bound. The court say : “ The decision of this case must depend on the construction of the deed. If the defendants have by their deed personally undertaken to pay, they must be holden to the agreement. The defendants have not, (if they had legal authority,) put the seal of the directors, or the seal of the corporation : but have put their own seals.”

In Stackpole v. Arnold, (11 Mass. 29,) which was an action on certain promissory notes, the court, in pronouncing judgment, say: “ Whatever authority the signer of a note may have to bind another, if he does not sign as agent or attorney, he binds himself, and no other person.”

In the case of Packard v. Nye, (2 Metcalf, 47,) it was decided, that a note in these words: !‘ We, the subscribers, trustees for the proprietors of a new meeting house at the head of Accushnet river, promise to pay,” &c., signed, “ Joel Packard,” “ Jonathan Swift,” was binding on Packard and Swift individually. The court say : “The notes, in terms, bind the signers personally, and they are called trustees as descriptio personarum, and to indicate the use to which the was to be

The cases from the English reports, are to the same effect. In Combe’s case, (Coke’s Reports, part 9, 76 b.), the question was, as to the validity of a surrender of copyhold lands made by attorney. In delivering its opinion, the Court of Common Pleas say : “ When any one hath authority as attorney to doe anything, he ought to doe it in his name who giveth the authority ; for he appointeth the attorney to be in his place, and to represent his person ; and, therefore, the attorney cannot do it in his own name, nor as his own act, but in the name, and as the act of him who giveth the authority.”

The case of Frontín v. Small, (2 Lord, Raymond, 1418,) was an action on a lease. The court confirmed the decision in Combe’s case, declaring, that a person empowered by warrant of attorney to execute a deed for another, must execute it in the name of the principal. See the same case in 1 Strange, 705.

In the case of Cullen v. The Duke of Queensbury and others, (1 Brown’s Parliamentary Cases, 396-404,) it was decided, that when the defendants, acting on behalf of a club of which they were members, entered into a contract with the plantiff to provide necessaries for the use and accommodation of the club, they were personally bound, and that the plaintiff was not obliged. to resort to any of the other members for satisfaction of his demands.

White v. Cuyler, (6 Term Rep. 176,) was an. action of as-sumpsit for wages due to the plaintiff, under a written agreement under seal. On a rule to set aside the verdict, the court, per Lord Kenyon, Chief Justice, said: “In executing a deed for the principal, under a power of attorney, the proper way is to sign in the name of the principal A

In Wilks et al. v. Back, (2 East, 142,) Wilks had authority as attorney to sign and seal a deed for his principal Browne; and the question was, whether a deed signed “ For James Browne, Mathias Wilks, [l. s.,]” was an execution of the deed in the name of the principal. It was held to be executed in the name of the principal, Grose, J., saying: “I accede to the doctrine in all the cases cited, that an attorney must execute his power in the name of his principal, and not in his own name ; but here it was so done ; for where is the difference between signing J. B. by M. W., his attorney, (which must be admitted to be good,) and M. W. for J. B.; in either case the act of sealing and delivery is done in the name of the principal, and by his authority.”

From these decisions it is evident, that to exonerate a party from personal liability, on the ground that he acted as agent, it must appear:

First. That he contracted, in the name of his principal, and not in his own.

Secondly. That he so contracted as to bind the principal,

It is not enough to exonerate him, that he contracted so as to bind his principal, if he did not also, contract and sign in the name that

Though some of the above decisions were in actions on instruments under seal, others, (e. g. Hills v. Bannister : Barker v. Mechanic Fire Insurance Company : Siackpole v. Arnold: Packard v. Nye,) were on contracts not under seal.

What is the law of this State 1 Must an agent, to exempt himself from personal liability, contract in the name of his principal 1

The Civil Code, art. 2954, declares, that “ a procuration or letter of attorney is an act by which one person gives power to another, to transact for him, and i?i his name, one or several affairs.” This is a literal translation from art. 1U84 of the Code Napoleon, and the interpretation of the French Code by its commentators, will apply to our own. A mandate, then, authorizes the agent to contract for the principal, and in his name. A contract not made in the name of the principal, is, consequently, not a contract executed under the power — i. e. not one executed as assent.

Potbier, Mandat, No. 88, declares: “ Quoique ce soil pour Vaffaire, qui fait I'objet du mandat, et en se renfermant dans les bornes du mandat, que le mandataire a fait quelques con-trats avec des tiers ; lorsque c'est en son propre nom qu'il a con-tráete et non pas en saseule qualité de mandataire d’un tel, pro-cureur ou fondé de procuration d’un tel, c'est, en ce cas, le mun-ddlaire qui s'oblige envers ceux avec lesqnels il a contráete ; c'est lui qui se rend leur débiteur principal. Mais il oblige conjointem.ent avec lui son mandant, pour l'affaire duquel il parait que le contrat se fait: le mandant, en ce cas, est censé acceder a toutes les obligations que le mandataire contráete pour son affaire." CEuvres, Ed. Dupin, vol. 4, p. 252.

Duranton, (Paris ed. vol. 18, No. 198,) commenting on the article of the Code Napoleon (1984,) identical with art. 2954 of the Code of this State, says : “ Le Code dit que le mandat con-siste dans un pouvoir, dounéa quelqu’un defaire quelque chose, pour le mandant, et en son nom ; mais il n'est cependant pas nécessaire, pour qu'il y ait mandat avec tous ses effets ordi-naires entre le mandant et le mandataire, que celui-ci ait traite au nom du mandant.” The inference is irresistible that, as between the principal and third persons, it is necessary that the agent should have treated in the name of the principal, pourqu'il y ait mandat, &c.

In Hopkins v. Lacouture, (4 La. 66,) the court, per Porter, J. say: “ The liability of the principal depends on the act done, not on the form in which it has been executed. The only difference is, that where the agent contracts in his own name, he adds his personal responsibility to that of the person who has empowered him.” The expressions of Judge Porter are quoted by Story, in his treatise on Agency, as a clear exposition of the law on his § 270.

In the case before the court, the contract was executed in the name of “Charles Gardiner" and “ John Nicholson;' not in the name of the “ Samaritan Society." The words “ a committee of the Samaritan Society ” in the body of the contract, being merely, in the language of the cases quoted, descriptio personarum. To have executed the contract in the name of that society, it should have been signed: “ The Samaritan Society, by John Nicholson, Charles Gardiner”-or “John Nicholson, Charles for the Samaritan Society.”

The defendants aver, that they “ were acting merely as agents for the corporation established by law, known as the Samaritan Society;" but the evidence is conclusive, that there was not at the time of the contract, any “ corporation established by law known as the Samaritan Society.” The only ground of defence being thus disproved, on what principle can a judgment be rendered for the defendants ? It may be said that the words “ corporation established by law known as the Samaritan Society,” are surplusage — that the defence really is, that the appellants acted as agents of a Samaritan Society, an unincorporated body. Taken even in this sense, the answer does not entitle the defendants, under their own admissions and the evidence, to a judgment. In the contract, admitted to have been signed by them, Nicholson and Gardiner describe themselves as a committee of the society. They were, consequently, members of it. The minute book offered in evidence, also proves that they were members. Now, being members of the society, and admitting the execution of the contract, plaintiffs are certainly, under the allegations in the petition and the prayer for general relief, entitled to a judgment against the defendants for their proportion of the debt, and that proportion must be one-half each, unless the defendants had alleged and proved that there were other members, jointly bound with them. They have not alleged what persons were bound with them, nor proved who they were.

In the opinion of the court, it is stated, “ that the defendants acted as agents, and gave the name of their principal.” This is erroneous. The defendants gave the name of the “ Samaritan Society,” a name by which they, and others, were authorized to constitute themselves a body corporate, by the act of 20 March, 1840 ; but they had refused to accept the charter given by this act, and never did accept any charter until long after the date of the contract with the plaintiffs, and after the act of 1840 had been altered by an act of 1842. Their name was not the “ Samaritan Society.” They were authorized to sue and contract that after the charter.

But it is not alleged, say the court, that defendants “contracted without authority, or exceeded that which they had, or that they acted for a non-existing principal against whom no resort could be had ; nor is there any other averment tending to show that the defendants, either expressly or impliedly, made themselves personally liable, although they acted as agents.” The plaintiffs do not admit, that the defendants acted as agents; but had they acted as such, it was enough to allege their personal responsibility — whether that resulted from contracting without authority, or exceeding that authority, or from acting for an irresponsible principal, is matter of argument or evidence.

case not warrant conclusion, that the plaintiffs gave credit to the Samaritan Society — the credit was evidently given to the individuals who signed the contract.

The court have considered art. 437 of the Civil Code, as authorizing unincorporated associations to assume a name without any express sanction of law, and to sue and contract in it. But this article warrants no such inference. It declares nothing more, than would have been the law, h.ad it not been inserted — to wit, that individuals, associating themselves together, though unincorporated, may acquire and possess property, and make contracts. It does not authorize individuals, purchasing or contracting jointly, to contract, or sue, or do any other act, in any other way, than in their individual names. Its words are : “ Corporations unauthorized by law, or by an act of the Legislature, enjoy no public character, and cannot appear in a court of justice, but in the individual name of all the members who compose it, and not as a political body : although these corporations may acquire and possess estates, and have common interests, as well as all other private societies.” A party cannot contract in a name, in which he cannot be i. e. “ in a court of

Triad the defendants acted as the agents of a corporation, it might have been said with some plausibility, (though the authorities show that such words would have been but descriptio per-sonarum,) that, by the words, “ a committee appointed for that purpose by the Samaritan Society,” the name of the principal was disclosed. But if, as was the fact, the defendants’ pretended principal, was but an unincorporated number of individuals, unauthorized, to use the words of art. 437, “to appear in a court of justice, but in the individual name of all the members who compose it, and not as a political body,” can it be maintained that the giving up of such a name, was a disclosure of that of the principal, to wit, “ the individual names of all the members,'" either literally, or substantially ? That it was not a literal disclosure, is evident; that it was not a substantial disclosure, is not less clear ; for if the plaintiffs had to look to the individuals composing the society, for their debt, it was all important to them, to know the names of the members — that they might judge of their ability, as adults, to contract, and of their solvency,- and to know their number, as the amount for which each would be liable under such a joint contract, would depend on the number bound. The court erred in concluding from the words in the body of the contract, that the defendants contracted as agents. These words are, that the “ agreement was entered into between Charles Gardiner and John Nicholson, a committee appointed for the purpose, by the New Orleans Samaritan Society.” Appointed for what purpose ? The answer is plain — for the purpose of effecting an arrangement “for the reception and treatment of the patients that might be sent” by the society. But whether this arrangement was to be made on the credit of Gardiner and Nicholson, or of the society, is not declared, nor can it be inferred from the instrument. Such an inference can only be drawn from facts disclosed by the evidence.

As to the liability of defendants in this case under the general principles of English law, the court is referred to Story on Agency, § 287: “ Although it is true,” says Story, “ that persons contracting as agents, are ordinarily held personally responsible, where there is no other responsible principal to whom resort can be had; yet the doctrine is not without some qualifications and exceptions, as, indeed, the words ‘ ordinarily held’ would lead one naturally to infer. Thus, for example, if private persons should subscribe a sum towards some charitable object, and should request an agent to employ tradesmen, and others, to supply materials to carry it into effect; and it should be distinctly made known by the agent, that the tradesmen and others were not to look to him, or to the subscribers personally, for payment, but that they must solely depend 'apon the success of the charitable subscription, and the state of the funds; and the supplies were furnished with this clear understanding, there could be no doubt that neither the subscribers (at least, beyond their subscriptions,) nor the agent, would be personally responsible.” In this case according to Story, to exempt the agents from personal liability, it should have been “ distinctly made known” by Nicholson and Gardiner to the plaintiffs, that they “ icere not to look to them for payment,” but “ that they must solely depend upon the success of the charitable subscription and the state of the fundsand it should have been further shown, that the treatment and “ supplies were furnished with this clear understanding.” Can this tribunal, in the absence of any such proof, reverse the judgment, and say to the plaintiffs that they can only recover, by making all the members of the society parties to the action — and this though no exception of non-joinder was made in limine litis, nor at any time below 1

Martin, J.

The plaintiffs have prayed for a re-hearing, and have favored us with a printed argument in the form of a petition. They have cited a great many authorities, tending to show the nature of the responsibility of agents, particularly in cases in which they incur a personal liability. They have not appeared to us applicable to the judgment complained of, which is the result of the impression we have received, that the plaintiffs were desirous of securing the responsibility of the funds of the society, if it was incorporated, and if it was not, that of all its members.

It is urged, that the petition concludes with a prayer for general relief, under which judgment may well be given against the defendants, as it appears, that they were acting as a committee of the society, appointed to contract with the plaintiffs, which shows. *444they were members, and, consequently, liable as such, the society being an unincorporated body. But, the defendants are sued as agents, and it is as such that all the artillery of the plaintiffs’ counsel, is directed against them. Could they have foreseen, that their membership was the ground on which they were attacked, they might have insisted, on naming their fellow members, that the proceedings should be stayed, until they were all brought in. This is what was intended to be said, in those parts of the judgment, which the counsel says he is unable to reconcile.

We have assumed, that the society was debited on the books of the plaintiffs, on the evidence which we saw in the account annexed to the petition, and made part of it. Their counsel now tells us, that this account was made out for the sole purpose of' being used as the foundation of this action. But we think, that the admissions in the pleadings, cannot be destroyed by the unsupported suggestions, which the ingenuity of the counsel may urge.

The credit given in the account annexed to the petition, for the rent of a house underlet from the society by one of the plaintiffs, is, certainly, some evidence that they considered the society as their debtor.

The counsel lastly, asks, whether the court is prepared to say, that a ‘party can contract in a name, in which he cannot be sued. This question may be answered in the affirmative. Persons connected in commerce, may contract under a firm which does not contain the Christian names of either of them, nor even their surnames, although they cannot be effectually sued, without the proceedings being carried on against them in their individual names; which, we admit, must be given in the exception, they might oppose to the petition, for want of a proper description of the defendants.

Re-hearing refused.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.