Ferry v. Moore

Bailey, P. J. It is urged that the decree is erroneous because of the failure of the petitioner to make the heirs of Aaron D. Ferry parties defendant. We see no ground, however, for holding that they were necessary parties. The title to the property affected by the decree was in Ferry’s wife, and, so far as appears, there was no interest or estate in him beyond his inchoate right of dower. That right was extinguished by his death and passed no interest to his heirs. JSTor were he or his heirs necessary parties because of Ferry being one of the parties to the contract under which the Jien was sought to be enforced. True the contract was made in his name, but the bill alleges and the decree found that, in making the contract, Ferry was acting as his wife’s agent, and that it was in fact her contract and not his. Such being the case, neither Ferry nor his heirs had any right to appear and contest the amount due on the contract. The whole matter, go far as they were concerned, was res inter alios. It is insisted in the next place that the Presbyterian Theological Seminary held an incumbrance on the lot which was prior to the petitioner’s lien, and that the decree should therefore have detfared a first lien on the lot in its favor, and made provision accordingly for a distribution of the proceeds of the sale of the premises. On this point it is sufficient to say, that the record is barren of evidence tending to establish the existence of the incumbrance. The Theological Seminary was- made a party defendant under the allegation that it had or claimed some interest in the premises as purchaser, mortgagee or otherwise, and that such interest, if any existed, was subsequent to- the petitioner’s lien. It thus became incumbent upon the. Theological Seminary to set up its incumbrance by answer and establish it by proof, if indeed it had one, and in the absence of such showing, it must be presumed that it had no interest in the premises which could be affected by the decree. The only substantial controversy in the case arises upon the issue of fact tendered by the plea. That the title to the lot was in Mrs. Ferry, and that in making the contract for the erection of the building and in all transactions connected therewith, her husband was really acting for her and as her agent is alleged in the petition and substantially admitted by the plea. The allegation of. the petition that the relation of the princi pal and agent between Mrs. Ferry and her husband was unknown to the petitioner until after the building was complete, and that Mrs. Ferry during all that time occupied the relation of an undisclosed principal, is not denied by the plea, but would seem to be tacitly admitted. The issue tendered is,- whether afterward, when the principal had been disclosed and the petitioner was fully informed of his rights and remedies as against her, he elected not to charge her as his debtor. The acts of the petitioner alleged in the plea and sought tor he established by the evidence, and by which it is claimed that such election was manifested, were making repeated demands for the balance claimed to be due him of Mr. Ferry and bringing suit against him therefor. It is said by Mr. Wharton in his" Treatise on the Law of Agency, that in order to relieve the principal, there must be something equivalent to an election not to charge the principal, and whether there is such an election is a question of fact, Avhich is not determined by charging the agent-after knoAvledge of the principal. And the learned author seems inclined to the opinion that merely commencing a suit against the agent docs not operate as an election Avhich discharges the principal. There must be acts indicating an intent, with full knowledge of all the facts, to give sole credit to the agent, and to abandon all claim against the principal. Whart. on Agency Sec. 472. The evidence bearing upon this issue Avas conflicting, unsatisfactory and inconclusive, and we think the master properly held that the alleged election was not proven. The plea being thus overruled as false, a decree for the petitioner necessarily followed. The rule is, that if at the hearing the plea is not found to be true, it Avill be overruled as false, and the-complainant will be entitled to a decree as on a bill taken as confessed. 1 Barb. Chan. Prac. 125. As there is no error in the record, the decree will be affirmed. Decree affirmed.