The opinion of the court was delivered by
Mr. Chief Justice McIver.
This was an action to recover the value of certain lumber and timber alleged to have been delivered by the plaintiffs to the defendants. Tho complaint set forth two causes of action — one upon a special contract in writing, and the other upon an implied contract tó pay what said lumber and timber, alleged to have been delivered by plaintiffs to defendants, was reasonably worth. It' appears that the written contract, which is not under seal, a copy of which is incorporated in the complaint, purports, upon its face, to be a contract, not between the plaintiffs and the defendants, but between Neill C. Munroe, one of the plaintiffs, and the defendants, and it is signed “Williams & Turley” and “N. C. Munroe.” The plaintiffs in setting forth their firs't cause of action in the complaint, after alleging that Neill C. Munroe and Daniel II. Everett are and were co-partners, at the time of making said contract, under the name of Munroe & Everett, and that Frank Williams and Dudley Turley are now, and were at the time of making said contract, co-partners under the name of Williams & Turley, allege that “the [575]*575defendants under their hand made a contract in writing with the plaintiffs, one of said plaintiffs, Neill C. Munroe. acting for the plaintiffs as a firm, which was understood and known by the defendants, and executing said contract for plaintiffs.” In setting forth the second cause of action, there is no allegation of any co-partnership, either between the plaintiffs or between the defendants.
In their answer defendants set up several defences. First, a general denial of the allegations of the complaint, except such as are thereinafter specifically admitted, but admitting, in express terms, the co partnership between the defendants. Second, that plaintiffs failed to perform their part of the contract set forth in the complaint, and denying specifically any knowledge of the fact alleged by plaintiffs, that the plaintiff Munroe, in making said contract, was acting for Everett as well as himself, and denying that such was the case.
The plaintiffs, amongst other things, offered parol testimony, which was received without objection, tending to show that plaintiffs were co partners, and so known to be by the defendants; that they also knew that Munroe, in making the contract, was not acting for himself individually, but for the firm of Munroe & Everett; that defendants had repeatedly recognized Everett as one of the firm, and had offered to pay him his half of the amount due by them for lumber, and that plaintiffs had performed their part of the contract, and that defendants had several times promised to pay the amount of the account sued upon, but had failed to comply with any of their promises.
At the close of the testimony in behalf .of plaintiffs, a motion for a non-suit was made by defendants, whereupon plaintiffs moved to amend their complaint “by making suitable allegations to complete the second cause of action.” The motion to amend was-refused, and the non suit was granted in a short order, which does not disclose the grounds upon which the non-suit was granted. The grounds upon which the motion for non-suit was made, as well as the grounds upon which such motion was granted, not appearing in the “Case,” as prepared for argument here, we are compelled to gather them, as best we may, from the plaintiffs’ grounds of appeal, as set forth in the record, and from the addi[576]*576tional grounds upon which the defendants have given notice that they would ask this court to sustain the judgment below', likewise set forth in the record, in the light .of the argument as presented by the respective counsel.
1 If the non-suit was granted upon the ground of a want of evidence to establish the allegations of the first cause of action, as seems to be implied by the plaintiffs’ first, second, third, fifth, and sixth grounds of appeal, then we think there was error. The rule is well settled, that in reviewing a judgment of non-suit, this court does not undertake to inquire into the sufficiency of the evidence adduced to sustain the allegations of the complaint, but the inquiry is whether there is any evidence to that effect, for unless there is a total absence of evidence tending to establish one or more of the material allegations of the complaint, a non-suit cannot properly be granted. An examination of the evidence, as set out in the “Case,” does not show any such total absence of testimony. On the contrary, there was certainly some testimony tending to establish each one of the material allegations of the complaint, and whether it was sufficient to do so should have been left to the jury. These remarks apply also to the first, second, third, fourth, and fifth of the additional grounds, for there certainly was some testimony as to each of the matters therein referred to. Indeed, as to the third and fifth of these grounds, there was an express admission in defendants’ answer.
2 If, however, the non-suit was granted upon the ground that the written contract set out in the plaintiffs’ first cause of action, and filed as an exhibit to defendants’ answer, purported to be a contract with Neill C. Munroe and not with plaintiffs, and could not be varied by oral testimony, as seems to be implied by plaintiffs’ fourth ground of appeal and defendants’ seventh additional ground relied upon to support the judgment below, then we think it cannot be sustained. The sole question presented by these grounds is whether a contract in writing, not under seal, purporting to be made by defendants with one person, can, by any competent evidence, be shown to have been made by such person, not for himself individually, but for the benefit of another; for as the “Case” shows that the oral testimony tending to prove that the contract here, though appearing [577]*577to be made with Munroe, was understood at the time by both parties to be made with-the plaintiffs, was received without objection, and thereby rendered competent, we are relieved from the necessity of inquiring whether such testimony, if objected to, would have been competent.
In Dupont v. Mount Pleasant Ferry Company, 9 Rich., at page 258, Withers, J., makes the following quotation from Story on Agency, section 160, which seems to be decisive of the question, to wit: “If the agent possesses due authority to make a written contract not under seal, and he makes it in his own name, whether he describes himself to be agent or not,'or whether the principal be known or unknown, he, the agent, will be liable to be sued and be entitled to sue thereon, and his principal also will be liable to be sued, and be entitled to sue thereon (italics ours), in all cases, unless, from the attendant circumstances, it is clearly manifested that an exclusive credit is given to the agent, and it is intended by both parties that no resort shall, in any event, be had by or against the principal upon it.” Judge Withers goes on to cite sections 394 and 395 of the same work, where, in the notes, numerous examples are given where the agent, as well as the principal, may sue. The same doctrine was plainly recognized by Mr. Justice McGowan in Harris v. Railroad Company, 31 S. C., 87, though the case is not precisely in point. Now, in this case there certainly was testimony tending to show that Munroe, in entering into the written contract with the defendants, was acting, not for himself individually, but as agent for the plaintiffs, and that this was known to the defendants.
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The opinion of the court was delivered by
Mr. Chief Justice McIver.
This was an action to recover the value of certain lumber and timber alleged to have been delivered by the plaintiffs to the defendants. Tho complaint set forth two causes of action — one upon a special contract in writing, and the other upon an implied contract tó pay what said lumber and timber, alleged to have been delivered by plaintiffs to defendants, was reasonably worth. It' appears that the written contract, which is not under seal, a copy of which is incorporated in the complaint, purports, upon its face, to be a contract, not between the plaintiffs and the defendants, but between Neill C. Munroe, one of the plaintiffs, and the defendants, and it is signed “Williams & Turley” and “N. C. Munroe.” The plaintiffs in setting forth their firs't cause of action in the complaint, after alleging that Neill C. Munroe and Daniel II. Everett are and were co-partners, at the time of making said contract, under the name of Munroe & Everett, and that Frank Williams and Dudley Turley are now, and were at the time of making said contract, co-partners under the name of Williams & Turley, allege that “the [575]*575defendants under their hand made a contract in writing with the plaintiffs, one of said plaintiffs, Neill C. Munroe. acting for the plaintiffs as a firm, which was understood and known by the defendants, and executing said contract for plaintiffs.” In setting forth the second cause of action, there is no allegation of any co-partnership, either between the plaintiffs or between the defendants.
In their answer defendants set up several defences. First, a general denial of the allegations of the complaint, except such as are thereinafter specifically admitted, but admitting, in express terms, the co partnership between the defendants. Second, that plaintiffs failed to perform their part of the contract set forth in the complaint, and denying specifically any knowledge of the fact alleged by plaintiffs, that the plaintiff Munroe, in making said contract, was acting for Everett as well as himself, and denying that such was the case.
The plaintiffs, amongst other things, offered parol testimony, which was received without objection, tending to show that plaintiffs were co partners, and so known to be by the defendants; that they also knew that Munroe, in making the contract, was not acting for himself individually, but for the firm of Munroe & Everett; that defendants had repeatedly recognized Everett as one of the firm, and had offered to pay him his half of the amount due by them for lumber, and that plaintiffs had performed their part of the contract, and that defendants had several times promised to pay the amount of the account sued upon, but had failed to comply with any of their promises.
At the close of the testimony in behalf .of plaintiffs, a motion for a non-suit was made by defendants, whereupon plaintiffs moved to amend their complaint “by making suitable allegations to complete the second cause of action.” The motion to amend was-refused, and the non suit was granted in a short order, which does not disclose the grounds upon which the non-suit was granted. The grounds upon which the motion for non-suit was made, as well as the grounds upon which such motion was granted, not appearing in the “Case,” as prepared for argument here, we are compelled to gather them, as best we may, from the plaintiffs’ grounds of appeal, as set forth in the record, and from the addi[576]*576tional grounds upon which the defendants have given notice that they would ask this court to sustain the judgment below', likewise set forth in the record, in the light .of the argument as presented by the respective counsel.
1 If the non-suit was granted upon the ground of a want of evidence to establish the allegations of the first cause of action, as seems to be implied by the plaintiffs’ first, second, third, fifth, and sixth grounds of appeal, then we think there was error. The rule is well settled, that in reviewing a judgment of non-suit, this court does not undertake to inquire into the sufficiency of the evidence adduced to sustain the allegations of the complaint, but the inquiry is whether there is any evidence to that effect, for unless there is a total absence of evidence tending to establish one or more of the material allegations of the complaint, a non-suit cannot properly be granted. An examination of the evidence, as set out in the “Case,” does not show any such total absence of testimony. On the contrary, there was certainly some testimony tending to establish each one of the material allegations of the complaint, and whether it was sufficient to do so should have been left to the jury. These remarks apply also to the first, second, third, fourth, and fifth of the additional grounds, for there certainly was some testimony as to each of the matters therein referred to. Indeed, as to the third and fifth of these grounds, there was an express admission in defendants’ answer.
2 If, however, the non-suit was granted upon the ground that the written contract set out in the plaintiffs’ first cause of action, and filed as an exhibit to defendants’ answer, purported to be a contract with Neill C. Munroe and not with plaintiffs, and could not be varied by oral testimony, as seems to be implied by plaintiffs’ fourth ground of appeal and defendants’ seventh additional ground relied upon to support the judgment below, then we think it cannot be sustained. The sole question presented by these grounds is whether a contract in writing, not under seal, purporting to be made by defendants with one person, can, by any competent evidence, be shown to have been made by such person, not for himself individually, but for the benefit of another; for as the “Case” shows that the oral testimony tending to prove that the contract here, though appearing [577]*577to be made with Munroe, was understood at the time by both parties to be made with-the plaintiffs, was received without objection, and thereby rendered competent, we are relieved from the necessity of inquiring whether such testimony, if objected to, would have been competent.
In Dupont v. Mount Pleasant Ferry Company, 9 Rich., at page 258, Withers, J., makes the following quotation from Story on Agency, section 160, which seems to be decisive of the question, to wit: “If the agent possesses due authority to make a written contract not under seal, and he makes it in his own name, whether he describes himself to be agent or not,'or whether the principal be known or unknown, he, the agent, will be liable to be sued and be entitled to sue thereon, and his principal also will be liable to be sued, and be entitled to sue thereon (italics ours), in all cases, unless, from the attendant circumstances, it is clearly manifested that an exclusive credit is given to the agent, and it is intended by both parties that no resort shall, in any event, be had by or against the principal upon it.” Judge Withers goes on to cite sections 394 and 395 of the same work, where, in the notes, numerous examples are given where the agent, as well as the principal, may sue. The same doctrine was plainly recognized by Mr. Justice McGowan in Harris v. Railroad Company, 31 S. C., 87, though the case is not precisely in point. Now, in this case there certainly was testimony tending to show that Munroe, in entering into the written contract with the defendants, was acting, not for himself individually, but as agent for the plaintiffs, and that this was known to the defendants. If these facts were established to the satisfaction of the jury, then, under the above authorities, the plaintiffs could maintain this action, and there was, therefore, error in granting the non-suit upon the ground indicated above.
3 The plaintiffs’ seventh and eighth grounds of appeal, and the defendants’ sixth ground, present the question, .whether the non-suit could properly be granted upon the ground that there is no allegation of partnership either between the plaintiffs or the defendants in the complaint setting forth the second cause of action. While this defect in the complaint may constitute ground for a demurrer, we do not see that it would [578]*578furnish any ground for a non-suit. The defect relied upon is in stating the plaintiffs’ case, not in the testimony offered to sustain it. Treating the objection, however, as made by a demurrer, we think there was error in refusing leave to amend, as it was just one of those cases where the plaintiffs should have been permitted to amend. Bischoff v. Blease, 20 S. C., 465.
4 It only remains to consider defendants’ eighth ground, upon which they claim the judgment of non suit can be supported. This ground is, that the contract, as set forth in the complaint on the first cause of action, shows a conditional sale of the lumber, and that the plaintiffs’ rights “cannot be enforced in this form of action.” This ground is based upon the fact, that in the contract the title to the lumber is reserved until the purchase money was paid. This, at most, amounts to nothing more than a mortgage, and we see no reason why the plaintiffs may not elect to sue for the debt instead of enforcing their mortgage. In view of the fact, that this objection would have no application to the second cause of action, the statement of which we have held should have been amended so as to meet the objection raised on the ground of a want of allegation of partnership, this ground loses all practical importance, and would, in no view, be sufficient to sustain the judgment of non-suit.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.