Worrill v. Taylor

By the Court. Benning J. delivering the opinion. Ought the Court to have granted the nonsuit? It is clear, that the Court ought not, if the evidence was such, that it would have authorized the jury, to conclude, that Philip F. Sapp, in the contract between him and Wm. Taylor, for the collection of the notes, acted in his individual, and not in his official character; and if the declaration states that he so acted. What then says the evidence ? The receipt is in such terms, that it will bear either interpretation. And this being so, Mr. Beall admits it to have been at the option of the plaintiffs, which interpretation it should receive. But he insists that they have elected in their declaration, to treat it as a receipt made by Taylor to Sapp, in Sapp’s representative or official character. As to that presently. Such is the receipt: [401] The further evidence is, that at the very time, probably, when the receipt was given, it was agreed, between Taylor and Sapp, that Taylor was to have, as a loan, $1,000, of the money to be collected by him on the notes. This is a fact which was quite sufficient to have warranted the jury in coming to the conclusion, that the contract of collection was one in which, Sapp acted in his individual, and not, in his official,-character. . Does the declaration correspond, in this respect, with the evidence ? The declaration is not consistent, on this point. Sometimes it treats the contract as having been made with Sapp in his representative character; and sometimes, as having been made with him, in his individual character. The plaintiffs moved to amend it, so as make it treat the contract at all times, as an individual contract. And this motion, we think, was allowable under the Act of 1854, to amend pleadings, and, should have been granted — that Act will certainly authorize the correction of an ambiguity. If then the declaration had been amended, the evidence was such, that, in our opinion, it would have authorized the jury to find for the plaintiffs. Consequently, we think that the Court erred in granting the nonsuit. Judgment reversed. McDonald, J. absent, on account of sickness.