Holland v. . Clark

Boyden, J. The defendant’s counsel lays down the doctrine too broad, when he attempts to maintain tliejposition that, if the plaintiff has a remedy by an action of covenant against one *106 person, he cannot sue in assumpsit another person for the same claim. It has been repeatedly decided in this Court, that where one partner signs his own name and affixes his seal, and then signs the name of his copartner, and affixes a seal to his name, having no authority under seal thus to sign, the party with whom this contract is made may sue, in debt or covenant, the partner who m person made the contract,* and that he cannot sue the other partner upon contract under seal, but that he may sue him in assumpsit. See the cases Fronebarger v. Henry, 6 Jones 548, Fisher v. Pender, 7 Jones 483, and cases there cited. So, in our case, the plaintiff might sue the surety who signed the instrument and affixed his seal, in covenant, but he could not bring covenant against the defendant Clark, for the reason that tie agent Yarrell had no authority under seal from Clark to sign such an instrument: but the agent having authority to hire the said slaves, and the defendant having received the slaves, and having had the benefit of their services for the year, the plaintiff m<.y maintain assumpsit for that service and woidd be bn titled to recover the sum agreed upon for their hire. The learned counsel was also mistaken, in the doctrine of merger as applied to this case. Had the defendant Clark signed and sealed the instrument sued on, then although a parol contract, for the hire of the slaves, had been made previous to the execution of the covenant, and the covenant thereafter executed embodying the same contract, then the parol contract would be merged in the higher security. But in our case Clark had not signed the covenant, and therefore there is no ground for the doctrine of merger. The law in such a case as the present has been too long and too well settled to be now open for discussion. See the opinion of Chief Justice Enffin in the ease of Fronebarger v. Henry, 6 Jones 548, and also the case of Osborne v. High Shoal Manufacturing Co., 5 Jones 177. It is well settled that, in our case, the plaintiff might have brought debt or -covenant against Wood, the suretj^ who had *107 signed and sealed the bond; and that Yarrell could not be sued upon the bond, but that assumpsit might be maintained against Clark, and a release to Yarrell or Wood was wholly unnecessary to enable the plaintiff thus to sue. There was error. This will be certified. Pee Curiam. . ' Venire de novo.