Rawlings v. Fuller

Elliott, C. J. The material question in the case arises • on the ruling of the court below in overruling the demurrers to the complaint. The objection urged to the complaint by the appellant is,, that it does not show a right of action in Fuller. The third section of the code declares, that “ every action must be prosecuted in the name of the real party in ¡interest, except as otherwise provided in the next section.” The-provision of the next section is as follows:- “An executor,, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining withi him the person for whose benefit the action is prosecuted.. A trustee of an express trust, within the meaning of this > section, shall he construed to include a person with whom. or in whose name, a contract is made for the benefit of another.” It will be observed, in this case, that neither paragraph-! of the complaint sets up or asserts any claim of title whatever in Fuller to 'the property. The contract, which is-made a part of the complaint, is signed by the appellant only,, and not by Fuller, and does not, in terms, contain a prom= [258] ise to pay the rent to him, though such"a promise may, perhaps, be inferred from its language; but it declares, that on failure to pay the rent as stipulated, he shall be entitled to take possession of the property, on demand. J. G. Howard, J. F. Bead, and J. W. Bay, for appellant. (G. V. Howie, for appellee. It describes him as the agent of the property, and expressly states that it belongs to the heirs of Sarah Eloyd. We do not think the facts stated constitute Euller the trustee ■of an express trust, within the meaning of the fourth section of the code; they only show, at most, that he was the .agent of the owners, ivith authority to rent the property for them. They are the only parties in interest, and the action .should have been prosecuted in their names. It does not appear, either by the agreement or the complaint, that Euller had any personal interest whatever in the contract. One who contracts merely as the agent of another, and .has no personal interest in the contract, is not the trustee of ■■an express trust within the meaning of the statute, and can-mot, under the code, sue on such contract in his own name. ;See Minturn v. Main, 3 Seld. 220; Grinnell v. Schmidt, 2 Sandf. 706. Judgment reversed, with costs, and the cause remanded, ■with directions to the court below to sustain the demurrer 'to the-complaint.