There has been some diversity of opinion amongst us upon the question presented in this case, but a majority of the judges have come to the conclusion that the action may be sustained by the present plaintiff.

The defendant contracted personally with the plaintiff to de certain things, and accepted the personal agreement of the plaintiff as an equivalent. Of this contract the defendant has ha,d the benefit. He entered and enjoyed the leased premises, and there is no justice in permitting him now to say that the contract was.void. The recitation in the covenant that the plaintiff acted in the character of an agent, does not of necessity control the other parts of the agreement. The fact is inconsistent with the personal covenants between the parties, which assume for Potts a different character; and it were safer to consider the words in reference to the agency as surplusage than to give them the effect of rendering void the contract. By adopting this construction, effect is *given to everything respecting which the parties contracted, and injury is done to no one.

The demurrer is overruled, judgment entered for the plaintiff, and the cause remanded for further proceedings.