Brewster v. Saul

Martin J., delivered the opinion of the court. In this case the original petition described and called the .defendant by the name of Thomas S. Saul. The sheriff returned on the citation, that service was made in that name, accordingly. Before any further proceedings were had, the plaintiff filed an amended petition, suggesting' that the defendant was called Thomas H. Saul, and not Thomas S. Saul, as his name was erroneously alleged to be in the original petition. He had leave to amend the pleadings in this respect. The defendant’s counsel excepted to the amendment and proceedings admitting it, alleging that it was erroneously as h substituted a new defendant in the place of the original, and that the first petition had not been legally served on him. These exceptions were overruled, and the defendant required to answer to the merits. He pleaded the 1 . 1 general issue. Judgment was pronounced against'him, and T •. -, he appealed. jn die opinion of this court, the exceptions were correctly • r 1 J overruled. The plaintiff himself alleges and shows that an error was committed by writing the defendant’s name Thomas S., instead of Thomas H. Saul. This is not denied: neither is it averred that there is any such person as Thomas Saul. The sheriff has returned that he'delivered the petition, A On the merits, it is shown by the oath of Walton and that his son, that the former is the plaintiffs’ agent for the sale 0f carriages in New-Orleans; and that he sold for them the carriage to the defendant, at the price and for the sum for which the present suit is brought. A , . . , It does not appear that Walton informed the defendant, or that the latter knew at the time, that the carriage was sold hr the account of the plaintiffs : hence, the defendant contends that Walton’s testimony was improperly received, s° was that of his son. This obieclion does not appear to amount to any thins:. J . AA , y ° The principal may always institute -an action on a contract made by his agent, in regard to his (the principal’s) affairs; [299] and we are not aware that it was ever held, in any case, that where the principal was ignorant that the agent acted for him as such at the time, that this circumstance formed an exception to the general rule. In the case of Williams et al vs. Winchester, 7 Martin, N. S., 22, this court held that “ when goods are sold and delivered to an agent for an unknown principal, the latter was suable when discovered” ; that the defendant was liable to the plaintiff1 to whom he was unknown, having contracted with him through an agent, without knowing who he was; or that the person he contracted with was an agent. The agency in the present case is fully proved by another witness. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.