
    BROWN, BRAWLEY & CO. v. DAVID BOSTIAN.
    
    Where A covenanted in -writing under seal, to deliver a quantity of flour to a partnership firm, and in the same instrument was a covenant on the part of the firm to pay for the same, signed in the name of the firm, with a seal affixed, it -was Held that an action on the covenant could be maintained against A in the name of the firm for not delivering the flour, and that independently of the question, -whether A could sustain an action on the-same instrument against the firm.
    Action of covenant, tried before BailA, J., at the last Spring Term of Mecklenburg Superior Court.
    The plaintiffs declared on the following written instrument: “This contract and agreement, entered into this 17th day of October, 1855, between John L. Brown for Brown, Brawley & Go., of the town of Charlotte, and State of North Carolina, and David Bostian of the county of Alexander, and State aforesaid, witnesseth, that the said Bostian, on his part, con-' tracts and agrees to furnish Brown, Brawley & Co. with one hundred barrels of good merchantable flour, to be delivered in lots of twenty barrels during each month, commencing on 1st of November next. Said Brown, for Brown, Brawley & Co., contracts and agrees to pay to the said Bostian seven dollars per barrel for each barrel so delivered. It is mutually agreed between the parties, that any act of God shall nullify the above contract and agreement. Witness our hands and seals and day first above written.”
    BeowN, Bbawlbv & Co. [seal.']
    
    David BostiaN, [seal.]
    
    The breach assigned was the non-delivery of the flour. It was proved that said Brown, was one of the firm of Brown, Brawley & Co., and that the covenant was executed by him and David Bostian.
    The defendant objected that the action could not be maintained in the name of Brown, Brawley & Co., but that it should have been brought in the name of John L. Brown alone.
    The question of law was reserved by the Court, and under his instruction, the jury found for the plaintiffs.
    Afterwards, the Court, on consideration of the question of law reserved, gave judgment for the plaintiffs.
    The defendant appealed.
    
      Brown, Wilson and Osborne, for the plaintiffs.
    
      Boy den, for the defendant.
    
      
      Decided at last term.
    
   Battle, J.

There is no error.

Pee Curiam, Judgment affirmed.  