Bradt v. Walton & Anhorne

I am satisfied that I was wrong in the opinion which I gave to the jury. It was a voluntary and gratuitous license on the part of the plaintiff, who might annex to it what condition he thought proper. It is admitted, that the defendants stand in the place of Lepper and Parsons, and could have no other or greater power than they possessed, If so, then, they could not use the name of the plaintiff, but on the condition annexed to the consent given by him to Lepper and Par-, sons*

The leave given by the plaintiff to use his-name, as one of the lessors, was not only gratuitous, for he had no interest in the suit, but it was specific. It was granted upon the condition that he should not be “ at any further expense, or have any thing to do with the suits or lots.” This was evidently the understanding of the parties, at the time that the plaintiff consented that Lepper might use his name. The plaintiff never meant to be liable, in any event, to any costs or expense that might thereafter be created, in relation to the lot, of to any suit concerning it, and so Lepper and Parsons must have, understood him. They were bound, in good faith, and under their circumscribed authority, to have disclosed to the defendants, when they employed them, the special terms upon which they were permitted to use the name of the plaintiff. They did not do it, and the plaintiff has been eventually subjected to great loss and *303damage. The single question is, whether he has his remedy, not only against Lepper and Parsons, who abused, by exceeding their power, but also against the defendants, who so used his name, under the directions of Lepper and Parsons. The defendants took the directions of their employers, at their peril. They used the name of the plaintiff, at the peril of being responsible to him, if they, by that means, subjected him to cost and expense. If Lepper and Parsons could not use his name, but under the condition annexed, no person employed by them could do it. The parties to this suit may be considered as equally innocent of any intentional injury, but the plaintiff has the legal right of action, as the defendants have used his name contrary to his instructions, so as te produce cost and expense to him. If his name could not be used, without putting him to cost and trouble, he meant that it should not be used at all, and so he told the persons who employed the defendants. He had a right to annex that condition to the license, even if it went it defeat it altogether. If Parsons and Lepper are insol vent and unable to satisfy these costs, the defendants ought rather to pay them than the plaintiff, for the defendants have trusted to the naked declarations of their clients, but the plaintiff bound them by a special authority.

The verdict ought, therefore, to be set aside, and anew Srial awarded with costs, toabide the event of the suit.

New trial granted.