
    John Mahoney vs. John A. McLean and another.
    March 16, 1880.
    Action on Specialty. — An action upon a sealed agreement, to recover for a breach of the same, can be maintained only against a party to such agreement.
    Action on a sealed contract, executed by plaintiff and one Donald Stevenson, whereby the former agreed to deliver to the latter 250 (with the privilege of delivering 300) tons of hay, and the latter agreed to pay therefor at the rate of $20 per ton. The breach alleged is a failure to pay a balance due on account of hay delivered, and a refusal to accept other hay tendered under the contract. The complaint alleges that the contract was made by defendants, acting by Stevenson as their authorized agent. A general demurrer to the complaint was overruled by the district court for Eamsey county, Wilkin, J., presiding, and the defendants appealed.
    
      
      Young é Neivel, for appellants.
    
      Lamprey é James, for respondent,
    cited Story on Agency,. § 446; 2 Smith Lead. Cas. 433; 2 Kent, 631; Trueman v. Loder, 11 Ad. & El. 319; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446; Yonghiogheny Iron Co. v. Smith, 66 Pa. St. 340; Merchants' Bank v. Central Bank, 1 Ga. 418.
   Berry, J.

This is an action upon a sealed agreement, executed by and between the plaintiff, as party of the first part, and Donald Stevenson, as party of the second part. The-plaintiff seeks to charge the defendants for an alleged breach of the agreement, upon the ground that the defendants, who were partners as McLean & Macnider, made the agreement, acting by, through and in the name of Stevenson, who acted as their agent, and for their use and benefit, and with their approval. In effect, this ground is neither more nor less than that Stevenson made the agreement in his own name, as agent for the defendants. No agency appearing upon the face of the agreement, it is the agreement of the party by. whom it purports to have been executed, and not the agreement of some undisclosed principal. This action being brought upon the agreement, and seeking to recover for a breach of the agreement, it can be maintained only against a party to the agreement — a party who has bound himself by it, and who has failed to keep it. Sencerbox v. McGrade, 6 Minn, 334 (484;) Fenley v. Stewart, 5 Sandf. 101.

Order reversed.  