
    William Grubbs vs. Yancy Wiley, Administrator of Samuel Mitchell, deceased.
    W. instituted an action of covenant against W. G., and upon the trial, read in evidence an agreement by Z. M. P. G. for the payment of money upon certain conditions, the agreement was sealed by “ W. G. for Z. M. P. G.” : Held, that the body and terms of the agreement proved that W. G. did not contract individually, but simply as agent; and, although W. in his declaration, alleged that W. G. did not execute the instrument as an agent, the evidence went to show directly the reverse, and W. could not therefore recover.
    ERROR from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.
    Yancy Wiley, administrator of Samuel Mitchell, deceased, instituted an action of covenant against William Grubbs, to the May term, 1843, of the circuit court of Yazoo county. The declaration contained two counts. The first averred that the defendant, by the name and signature of “ Wm. Grubbs for Z. M. P. Grubbs,” made his certain writing obligatory, sealed with his seal, &c., binding himself to pay the plaintiff one thousand and seventy-five dollars. The second count was similar to the first, with the additional averment, that the defendant was not the agent or attorney in fact of the said Z. M. P. Grubbs, in the execution of said writing obligatory, and was not by him authorized to execute the same. The defendant demurred to the declaration; his demurrer was overruled, and he then filed a general plea of non est factum, verified by affidavit.. After a verdict and judgment were rendered for the plaintiff, the defendant entered a motion for a new trial, which being overruled, he filed a bill of exceptions and set out the evidence. From the bill of exceptions it appears, that on the trial, the plaintiff proved that the signature to the instrument sued on was in the handwriting of the defendant, and then read the instrument to the jury, which ran thus: “Know all men by these presents, that I, Z. M. P. Grubbs, am held and firmly bound unto Yancy Wiley, administrator of Samuel Mitchell, deceased, in the just and full sum of one thousand and seventy-five dollars, for the hire of sixteen negroes,” &c. proceeding with the terms and conditions of the hiring, and upon which the money was to be paid, and was signed thus: “ Wm. Grubbs for Z, M. P. Grubbs, (seal).” And here the plaintiff rested his case. The defendant then proved by a witness, that he (witness) drew up the instrument sued on, in the presence of plaintiff and defendant ; that the defendant had for some years been acting as the general agent of Z. M. P. Grubbs, which fact was known to the plaintiff; and the contract was entered into by the plaintiff upon the faith, credit and responsibility of Z. M. P. Grubbs, and not of William Grubbs. During the whole negotiation, William Grubbs was acknowledged to be, and treated as the agent of Z. M. P. Grubbs. This was all the evidence adduced upon the trial. The defendant now prosecutes this writ of error.
    
      William R. Miles, for plaintiff in error.
    In.my opinion, it would be difficult to find a verdict more palpably against evidence, than the one in this case. To rebut the plea of non est factum, the plaintiff simply proved the signature to be in the handwriting of William Grubbs. That fact was never disputed. The plaintiff alleges in the declaration, that the instrument sued on was “the writing obligatory” of the defendant. This fact is denied by the plea of non est factum, and the onus thus thrown upon the plaintiff. He utterly failed to show that the writing obligatory was the deed of the defendant.
    But, in support of the plea, it was shown by a witness, who drew the instrument sued on, that Wiley, when the contract was made, recognized William Grubbs as the agent of Z. M. P. Grubbs; that he contracted with him in that capacity, and that the whole matter was arranged between Wiley and William Grubbs, with the full knowledge and distinct understanding on the part of Wiley, that William Grubbs was contracting, not for himself, but for another. Besides, the body of the instrument is specific in its delineation of the terms, character and parties to the contract; all showing that Z. M. P. Grubbs, and not William Grubbs was the person contracting. It occurs to me, that Mi*. Wiley cannot have the privilege of contracting with one person, and collecting his debt from another. It seems to me, therefore, that the finding of the jury was contrary to law and evidence, and the motion for a new trial ought to have been sustained.
    
      R. R. Holt, for defendant in error.
    The plea of non est factum, filed by defendant, extended only to the first count in the declaration. The only issue raised under the second count was, whether the defendant had power to execute the instrument set out, as the agent of Z. M. P. Grubbs. The plaintiff asserting that defendant had not such power, the defendant alleging that he had. The issue of fact thus fairly made, was determined against the defendant by the jury, on the ground that he had not sufficiently proved his authority. Their decision upon this point cannot be interfered with unless founded on a misapprehension of law, or unless it be plainly inconsistent with the evidence. Upon the latter point there can be no question. The evidence fell wholly short of proving an authority in the defendant to contract, sign and seal for Z. M. P. Grubbs.
    Did the jury err, then, in supposing that the law imposed upon the defendant the burthen of proving his authority! They certainly did not. The defendant asserted the existence of such authority. The affirmation of the issue was upon him, and he was bound to prove it. Greenl. on Evid. 89 ; 1 Stark. Evid. 376.
    The fact of the existence of such authority resting peculiarly within the knowledge of the defendant, he was bound to prove it, even though he had held the negative of the issue. Greenl. on Ev. 95; 1 Stark. Ev. 377.
    In view of these rules, it was decided, in the case of White 
      v. Skinner, 13 J. R. 307, that if one be sued on a contract, and defends on the ground that he entered into it as agent for another, he must aver and prove his authority. So decided also in 8 Wend. 485. We think, therefore, that the court rightly refused a new trial to the defendant.
    We do not conceive that the question, whether William Grubbs is responsible on the contract set out in the declaration, as upon his own contract, if he made it without authority from Z. M. P. Grubbs, is properly presented by the record for the consideration of this court. Should the court, however, think otherwise, we refer to Story on Agency, 261; 13 J. R. 307; 3 Johus. Cas. 70, and 1 Missouri R. 598, as showing conclusively such legal responsibility.
   Mr. Justice Thacher

delivered the opinion of the court.

Wiley, administrator, instituted an action of covenant against William Grubbs. The declaration contained two counts upon a writing obligatory. The writing obligatory set out in the counts of the declaration, exhibited an agreement by one Z. M. P. Grubbs, for the payment of money upon certain conditions, and the agreement nowhere shows the defendant, William Grubbs, to have contracted as principal with the plaintiff, and the agreement was sealed by William Grubbs for Z. M. P. Grubbs.” The declaration also contained an averment, that the defendant was not the agent or attorney in fact of Z. M. P. Grubbs, in the execution of the writing obligatory, and that William Grubbs was not authorized by him to execute the same. The defendant pleaded non est facium generally, and upon trial, the jury found for the plaintiff. A bill of exceptions, filed upon the overruling of a motion for a new trial, discloses that the plaintiff upon the trial, proved the signature affixed to the instrument sued upon to be in the handwriting of William Grubbs, and then read the said instrument in evidence. The defendant then proved by a witness who drew up the instrument, that it was drawn in the presence of the plaintiff and defendant ; that William Grubbs had been acting for some years as the general agent of Z. M. P. Grubbs; that the agreement declared upon in the action, was made by the plaintiff upon the faith and credit of Z. M. P. Grubbs exclusively, and that the plaintiff considered and treated the defendant as an agent only, upon the occasion of the execution of the agreement.

The effect of the general plea of non est factum, in this form of action, operated as a denial of the execution of the instrument in point of fact only. The plaintiff having established its execution by proving the signature of the defendant, then introduced the instrument in evidence. The body and terms of the instrument, thus introduced, proved that the defendant did not contract individually, but simply as agent; and, although the plaintiff in his declaration, alleged that the defendant did not execute the instrument as an agent, the effect of his evidence went to show precisely the reverse. It is difficult to see upon what grounds the jury could have found as they did upon this showing.

Judgment reversed and new trial granted.  