
    PRECISION PRODUCTS CORPORATION, PLAINTIFF-APPELLEE, v. BERNARD MILLER, DEFENDANT-APPELLANT.
    Argued October 7, 1924
    Decided January 30, 1925.
    Contracts — Recovery on “Check” — Action Styled “in Tort”— Also Brought by Treasurer of Corporation for Whose Benefit Check Was Given — Opportunity to Amend State of Demand in Respect to Plaintiff, and Judgment Thereupon Given for Amount of “Note” — Reversal and Proper Trial Ordered,
    On appeal from the District Court.
    Before Justices Trenciiard, Minturn and Lloyd.
    For the appellant, Christopher P. Connolly.
    
    For the appellee, William J. McFadden.
    
   Pur’ Curiam.

This was an action briught by “George L. Hall, Treasurer,” plaintiff, to recover $500 on a check, made’by the defendant and payable to the order of “George L. Hall, Treasurer.” The action was styled “in tort.” The defendant, on the return day in the District Court, moved to strike out the complaint on the ground of misjoinder and non-joinder o£ the parties, and on the further ground that the plaintiff sued as agent, not as principal. This motion was overruled.

Thereafter, on June 26th, 192J, the cause came on for trial. Hall testified that he was treasurer of the Precision Products Corporation, and that the check was given to him in discharge of a contract obligation of the defendant to the Precision Products Corporation.

Thereupon, the defendant moved to nonsuit on the ground, first, that the action was' brought in tort, and should have been on contract: secondly, that the plaintiff in the action, George L. Hall, treasurer, had no authority to sue for or on behalf of the Precision Products Corporation, which motion was denied. The defendant then “asked the court for a finding and judgment” in his favor. The agreed case then says that “after argument, the court continued the case until August 5th, 1924, and allowed counsel for defendant two weeks in which to file and serve on plaintiff’s attorney a brief of authorities.” The agreed case continues: “Thereupon, on June 2711b, 1924, the court made the following order in the said cause: ‘The state of demand is to be amended to make the Precision Products Corporation plaintiff. Judgment then to be entered against defendant for the amount of the note/ ” This, it is asserted, and the presumption is, was done in the absence of the defendant.

We think there should be a reversal and a proper trial, at which appropriate motions for appropriate amendments of process and pleadings may bo made and dealt with in the presence of the defendant.

The judgment will be' reversed and a venire de novo awarded.  