Bryant v. Durkee

9 Mo. 168

• Court: Supreme Court of Missouri
• Decided: January 15, 1845
• Status: Published

Opinion

Tompkins, J.,

delivered the opinion of the court.

Chancy Durkee commenced his suit by petition in debt, in the circuit court of Adair county, against Archibald S. Bryant, on two instruments of writing executed by the defendant Bryant, and another, and made payable to said Durkee, agent for the proprietors of the town of Sand Hill. Judgment was given for the plaintiff. The defendant moved in arrest of judgment, and assigned that the judgment was entered up in favor of Durkee individually, and not as agent for the proprietors of the town of Sand Hill. His motion was overruled, and to reverse the judgment of the circuit court he appeals to this court.

The appellant, by making his instruments of writing here sued on, payable to Durkee, the appellee, admitted that he was payor of the instruments of writing. The proprietors of the town of Sand Hill, whoever they may be, can never sue the appellant on these writings. A recovery by their agent, is # good bar to any action by them for the same cause. And indeed it is quite immaterial to the appellant whether there be any proprietors of the town of Sand Hill. If, indeed, here be any proprietors of that town, other than Durkee himself, he admits by suing as their agent, that the money recovered in this action is for their use; and the defendants, by making the note payable to Durkee, admit their liability to him. At most, it is a mere descriptio personie, not necessary to insert, and it might be rejected as surplus-age. Freeman & Snowden vs. Campden et al, 7 vol. Mo. R. 298.

The judgment of the circuit court of Adair county is affirmed.