Graham v. Fahnestock

5 Gill 215

Opinion

Archer, C. J.,

delivered the opinion of this court.

The single bill which constitutes the cause of action in this case, is drawn payable to Samuel Fahnestock, agent, and the declaration alleges that the single bill was made payable to him, without averring that it was made payable to him as agent. There exists no foundation for the objection urged, that there is a variance between the single bill, and the allegations of the nar.

The contract is expressly made with the plaintiff; the addition of the word agent is a mere description, and is like the case of a note or single bill made payable to A. B., executor. The principle has often been decided: 8 Con. 60, and the cases there cited; the promise is to the agent personally: 8 Mas. 103. The same judgment has been pronounced in this court. Turner & Plowden, 2 G. & J. 435.

If the above positions be true, it follows that Samuel Fahnestock being invested with the legal right to the single bill, possessed the power of assignment; and in this case, whether he possessed the legal authority to assign to the plaintiff the single bill, was a question of law. The plea therefore of the defendant which put this question to the jury, was bad on demurrer.

The plea of the defendant which alleged the infancy of the plaintiff, was properly struck out by the court. The subject matter of the plea was in abatement, and it is not verified by affidavit, without which it could not be received. 3 Cain’s Rep. 99, 100. 1 Penn. Rep. 442. Eagle vs. Nelson, 4 H. & McH. 413. 4 Anne, ch. 16, sec. 11.

JUDGMENT AFFIRMED.