The opinion of the court was delivered, November 18th 1868, by

The only assignment of error we have to consider is the 3d — “ The court erred in answering defendants’ 1st point in the negative.” This point is in these words: “ If the jury find from the evidence that plaintiffs’ charter of incorporation was granted or issued on the 28th day of December 1864, it cannot recover in this action for goods or property alleged to have been sold by it from September 16th 1864 to October 31st 1864, both days inclusive.”

In testing the correctness of the court’s decision as to this point, we cannot do better than give the reasons they assigned for it. It is to be recollected that there was no dispute about the quantity of oil to be delivered or accounted for by the defendants; but the allegation on their part was, that Y. M. Thompson, and not the Thompson Oil Company, was the proper person to maintain this action; that he was the legal owner, althoiigh the company, as his transferees, were the equitable or real owners. It will be perceived, therefore, that this was a. strictly technical objection arising from an old rule of law.

The court say: “ Y. M. Thompson made a contract with the ■defendants, dated September 16th 1864, for the purchase of an interest in the two wells or their production in his own name. This entitled him to the share of the products claimed to be recovered in this suit, or something near the same, but no part of .it was ever received by him.

*211“ This contract was to be consummated by a deed from the defendants, but for certain reasons owing in part, if not chiefly, to the refusal of the defendants to carry out the original contract, no deed was obtained until the 28th day of January 1865. In the mean time, vjz., on the 28th of December 1864, the Thompson Oil Company was chartered, and acquired a legal existence, and V. M. Thompson had transferred all his interest in the purchase and its accumulations from its date, to it. In this corporation he was then a large stockholder, and its principal ofiieer and agent. When the deed came to be made, after much wrangling and many hitches, it was made directly to the Thompson Oil Company. Some changes in the original contract, insisted on by the defendants, were made affecting the interests conveyed, as well as the party purchasing. V. M. Thompson testifies that when this adjustment was effected, it was agreed by the defendants that the share of the oil to which the interests conveyed by them were entitled after the 16th of September, the date of his original contract, should be delivered to the plaintiff. In corroboration of this statement it is shown that the deed finally executed by the defendants, was made to the plaintiff, and dated back to the 16th of September 1864.

“ Previous to this settlement and consummation of the contract, the product of these wells due to the interests purchased by Thompson had been pledged or hypothecated by him to the defendants as security for the notes they had against him. But at this time the oil was released from that encumbrance, and Commercial Oil Company’s stock taken in lieu thereof. These facts, if believed, show a new and original promise by the defendants to deliver over and account to the plaintiff for all the oil which the interests conveyed entitled the grantee or holder to receive.”

The suit is on that contract.

The court were therefore right in answering this point in the negative.

Judgment affirmed.