Opinion
(June Term, 1851.)
Where an agreement purported to be between A. B. "for and on behalf of the Albemarle Swamp Land Company of the one part" and B.R. of the other part," and stipulated that the party of the second part should "get on the land of the party of the first part" a certain quantity of lumber and deliver it, etc.; and in conclusion it is said "in witness whereof, A. B. for and on behalf of the party of the first part, being the Albemarle Swamp Land Company," and B.R. as the party of the second part, have hereunto set their hands and seals, and the agreement was signed by A. B. for and in behalf of the Albemarle Swamp Land Company": Held, that this was a contract between the company and B. R., and that A. B. could support no action for a breach of it in his own name, but that the action must be in the name of the company.
APPEAL from Caldwell, J., at BEAUFORT Spring Term, 1851.
Covenant. Plea: non est factum. The instrument is in the following form: "Know all men by these presents, that William B. Whitehead, for and on behalf of the Albemarle Swamp Land Company of the one part, and Burwell Reddick and Willis S. Reddick on the other part, do enter into the following agreement: The party of the second part agree to get on the land of the party of the first part, near Plymouth, N.C. the following kinds of lumber, and deliver the same on board such vessels as Shell Landing as the party of the first part may send for the same, to wit, 500,000 to 700,000 juniper shingles of the best quality, to be 30 inches long, etc." (Then describing other kinds of shingles and staves and juniper bolts.) And the said party of the first part agrees to pay to the party of the second part for each and every thousand shingles so got and delivered $10; for each and every thousand staves $12, etc. The said lumber to be considered as received by the party of the first part when delivered on board such vessels as may from time to (96) time be sent for it, and payment made on presentation of the captain's receipt or bill of lading, subject to deductions for such as may be thrown out as cullings when the said lumber shall be sent to market. All the foregoing timber to be gotten on or before the first of January, 1848, at which time the getting or making is to cease if desired by either party.
"In witness whereof, William B. Whitehead, for and on behalf of the party of the first part, being the Albemarle Swamp Land Company, and Burwell Reddick and Willis S. Reddick, as the party of the second part, have hereunto set their hands and affixed their seals, this 23 June, 1846.
"W. B. WHITEHEAD, (SEAL) "For and on behalf of the Albemarle Swamp Land Company. "B. REDDICK, (SEAL) "W. S. REDDICK. (SEAL)"
On the trial it was objected by the defendant that Whitehead could not maintain an action on the agreement in his own name, but that it ought to have been brought by the Albemarle Swamp Land Company, which, it was admitted, was a copartnership consisting of the said Whitehead and five other persons. Of that opinion was the court, and the plaintiff submitted to a nonsuit and appealed.
J. W. Bryan for plaintiff.
Donnell for defendant.
The natural supposition is that in contracts made by agents the stipulations are by and with the principals. Yet as agents may bind themselves for their principals, and as the language of agreements is often inexplicit, it frequently happens that it is not easy to determine whether the contract is that of the agent personally or of the principal exclusively. In this case, however, there is no difficulty of that sort. The instrument purports to be between two parties, and only two; and the question is, Whitehead or the Land Company is one (97) of these two. Perhaps, from the structure of the sentence comprising the premises, the character of the instrument in this respect might be deemed somewhat equivocal. But the first stipulation contained in the next sentence speaks explicitly. It is that the defendants "agree to get on the land of the party of the first part" the lumber specified. The defendants were undoubtedly not to work on Whitehead's land, but on that of the company; therefore the company is here shown to be the first party to the contract. In the same manner it is seen in other parts that the timber is to be got for and delivered to the company and paid for by them, they being described all along as "the party of the first part." Moreover, in the conclusion of the articles, it is plainly declared that Whitehead does not execute them as being himself a party to them, but executes them as the deed of the company by saying that he does so "for and on behalf of the party of the first part, being the Albemarle Swamp Land Company." It is thus clear that the deed throughout calls the company the party of the first part, and hence the plaintiff is not exclusively that party, and the judgment must be
PER CURIAM. AFFIRMED.
Cited: Brown v. Bostian, 51 N.C. 3; Bryson v. Lucas, 84 N.C. 687.
Dist.: Savage v. Carter, 64 N.C. 197.
(98)