Cox v. Skeen, 24 N.C. 220, 2 Ired. 220 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 220, 2 Ired. 220

WILLIAM COX vs. MATTHEW AND NATHAN SKEEN.

Where a promise, not under seal, is made to A. for the benefit of B., B. may bring an action in his own name, but the promise must be laid in the declaration as having been made to B., and the promise actually made to A. may be given in evidence to support the declaration for in such a case A. is considered as the agent of B.

But where it is apparent that A. was the principal, that the contract was for his benefit, and that B. was only to receive payment of the stipulated sum for and in behalf of A., then A. alone can bring the action.

This was an appeal from the judgment of the Superior Court of Law of Davidson county, at Spring Term, 1842. his Honor Judge Dick presiding. The case was an action of assumpsit commenced by warrant before a justice of the peace, which was brought by successive appeals to the Superior Court. The plaintiff offered in evidence a paper writing, which he proved was the agreement of the defendant in the words and figures following, to wit, “ November 9th, 1838, between Nathan Skeen and Matthew Skeen an agreement with William Cox for his work for twelve months at the shoe-making business and other things when called on for the price of fifty dollars, ten dollars to be paid when the time is half out, and the balance when the year is out by the authority of William Riley, to commence November the 27th, 1838, to be paid to William Riley.

“ Wilson Skeen, witness.

“A part left out which is if can’t agree part and pay according to what he is worth, not considered to be worth as much the first as last.”

The plaintiff proved that he worked for the defendants about eight months, and upon some disagreement left the defendants, and brought this warrant to recover the value of his services for eight months. It appeared in evidence that the plaintiff was under twenty-one years of age at the time this contract w¿s entered into, and that William Riley acted as his friend, or assumed some control over him. The court intimated an opinion that the plaintiff could not sustain the action in his own name. — .that the suit ought to have been brought in the name of William Riley. The plaintiff, therefore, submitted to a nonsuit, and appealed to the Supreme Court.

Mendenhall for the plaintiff,

cited the following cases:— Piggot v Thompson, 3 Bos. & Pul. 147, note a. Seher-merhorn v Vanderhayden, 1 Johns. Rep. 139. Felton v Dickinson, 19 Mas. Rep. 287.

No counsel appeared for the defendant.

Gaston, J.

Upon the case stated, we are of opinion that this action is properly brought by the plaintiff. It is a general rule that the action should be brought by the person, in whom the legal interest in the contract is vested. In this case the agreement professes to be made between the plaintiff and the defendants, and the consideration of the defendants’ promise is the labor stipulated to be performed by the plaintiff. If the agreement had been by deed, it is clear, that no action could have been brought upon it for the breach of the defendants’ covenant but by the plaintiff. It is true that where an agreement is not under seal, the person, for whose sole benefit it is evidently made, may sue thereon in his own name, although the engagement be not directly to or with him. But in such a case, that is to say, of a promise to A. for the benefit of B., and an action brought by B., the promise must be laid as having been made to B., and the promise actually made to A. may be given in evidence to support the declaration. Company of Felt-makers v Davis, 1 Bos. &, Pul. 102. This shews that the apparent exception from the general rule obtains only when he, to whom the promise is made, may be regarded as the agent of him for whose benefit it was made. Now upon the face of the written agreement, as well as on. the parol evidence, it is apparent that this contract was not made for the benefit of Riley, nor was the plaintiff Riley’s agent, but that the contract was made for the benefit of the plaintiff, that the plaintiff was himself the principal, and that Riley was to receive payment of the plaintiff’s wages for, and in behalf of, the plaintiff. The judgment of nonsuit must be reversed, and a new trial awarded.

Per Curiam, Nonsuit set aside, and a new trial awarded.