Opinion
(December Term, 1833.)
A bill drawn in favor of an agent for a debt due to his principal, may be declared on in the name of the principal, and will support an action in his name against the drawer, where the agency was known at the time to the drawer.
ASSUMPSIT tried before Seawell, J., at TYRRELL Fall Term, 1833. Plea — non-assumpsit.
No counsel appeared in this Court for the plaintiff.
Badger for the defendant.
The plaintiff was a merchant; and had sold goods to one W. A. Tarkington, who being asked for payment, drew an order on the defendant, payable to Hathaway, the clerk of the plaintiff. The order was presented, and the defendant promised to pay it, and requested the clerk to charge it as an item in his account on the plaintiff's books, which was accordingly done. The defendant contended, that the plaintiff could not recover on this evidence, because the order which he promised to pay, was payable to Hathaway and not to the plaintiff. The Court charged the jury, that if the facts were true, and if the (358) defendant understood the character in which Hathaway stood, it was evidence to support an action in the name of the plaintiff. The jury rendered a verdict for the plaintiff. The defendant moved for a new trial, for misdirection, which was overruled and judgment rendered; from which, the defendant appealed.
The request made by the defendant, that the order which he had promised to pay, might be charged against him, as an item in his account standing on the books of the plaintiff, and the entry having been made accordingly, was a promise made to the agent, which enured to the plaintiff. 1 Chitty's Pleadings, 5. The acceptance of the order was an admission by the defendant, that he had funds in his hands belonging to the drawer. The jury have found that the defendant knew that the payee was the agent of the plaintiff. The consideration, therefore, which supports the direct promise made by the defendant to the plaintiff, is the extinguishment of his debt to the drawer, and the relinquishment by the plaintiff, and the payee his agent, of the demand on the bill and acceptance. We think the judgment should be affirmed.
PER CURIAM. Judgment affirmed.