
    Bedford S. Worrill, et al., executors, plaintiffs in error, vs. Henry L. Taylor, administrators, defendant in error.
    ?m. Taylor gave to Philip F. Sapp, a receipt in tlie following words : “Received of Philip F. Sapp, administrator of Milledge Sapp, deceased, the following promissory notes for collection,” (stating them) — “payable to Mil-ledge Sapp, or bearer. The executors of Philip P. Sapp sued the administrator of Taylor, on this receipt. There was evidence sufficient to authorize the jury to conclude, that this contract of collection, was made with Philip F. Sapp in his individual, and not in his official character. The Court granted a nonsuit. Held, that the Court ought not to have done so.
    Assumpsit, in Randolph Superior Court. Decision by Judge Kedjdoo, at November Term, 1858.
    This was an action of assumpsit, by William West and Bedford S. Worrill, executors of Philip F, Sapp, deceased, against Henry L. Taylor, administrator de bonis non of William Taylor, deceased, upon a receipt given by William Taylor in his life, who was an attorney at law, for certain notes received by him for collection, from the testator, Philip F„ Sapp. The receipt was as follows:
    “Received from Philip F. Sapp, administrator of Milledge Sapp, deceased, the following promissory notes, for collection/” (here the notes are described, amounting in all, to over $>1,300). “ All the above and foregoing notes made payable to Milledge Sapp, or bearer, March 15th, 1848.
    (Signed) WILLIAM TAYLOR,
    Attorney at law.”
    There were two counts in plaintiff’s declaration — one that Taylor received said notes, as an attorney at law, to be collected, in consideration of a certain fee or reward to be paid to him; that he had collected the same, and had failed to pay over the same. The oilier count was, that Taylor had failed to collect said notes, as he had undertaken to do, áre.
    Defendant pleaded the general issue, the statute of limitations, plane administravit, and set off.
    Upon the trial, plaintiffs offered and read in evidence, the foregoing receipt.
    Plaintiffs then proved that their testator agreed to loan William Ta3dor one thousand dollars, of the money to be collected on the notes mentioned in said receipt; and that Taylor had collected between $800 and $¡1,000, and that all the notes were good, and could have been collected with ordinary diligence. Philip F. Sapp, the testator, died in August, 1852, and William Taylor died in December, 1852¡
    Upon plaintiffs closing their testimony, counsel for defendant moved for a nonsuit, on the ground, that the pleadings and evidence showed that no right of action was in plaintiffs, but that the administrator de bonis non, of Milledge Sapp, deceased, was alone entitled to bring suit upon the demand or cause of action, as set forth in the declaration.
    Plaintiffs moved to amend their declaration, by striking out the word “as” wherever it occurred before the words “ administrator of Milledge Sapp, deceased.”
    The Court refused the motion to amend the declaration, and granted the motion for a nonsuit; holding, however, that the amendment proposed by plaintiffs would not have changed the opinion of the Court, as to awarding the non-suit. To which ruling and decision, plaintiffs excepted.
    B. S. Worrill, for plaintiff in error.
    Barry; and Beall, contra.
    
   By the Court.

Benning J.

delivering the opinion.

Ought the Court to have granted the nonsuit?

It is clear, that the Court ought not, if the evidence was such, that it would have authorized the jury, to conclude, that Philip F. Sapp, in the contract between him and Wm. Taylor, for the collection of the notes, acted in his individual, and not in his official character; and if the declaration states that he so acted. What then says the evidence ? The receipt is in such terms, that it will bear either interpretation. And this being so, Mr. Beall admits it to have been at the option of the plaintiffs, which interpretation it should receive. But he insists that they have elected in their declaration, to treat it as a receipt made by Taylor to Sapp, in Sapp’s representative or official character. As to that presently.

Such is the receipt:

The further evidence is, that at the very time, probably, when the receipt was given, it was agreed, between Taylor and Sapp, that Taylor was to have, as a loan, $1,000, of the money to be collected by him on the notes.

This is a fact which was quite sufficient to have warranted the jury in coming to the conclusion, that the contract of collection was one in which, Sapp acted in his individual, and not, in his official,-character.

. Does the declaration correspond, in this respect, with the evidence ?

The declaration is not consistent, on this point. Sometimes it treats the contract as having been made with Sapp in his representative character; and sometimes, as having been made with him, in his individual character. The plaintiffs moved to amend it, so as make it treat the contract at all times, as an individual contract. And this motion, we think, was allowable under the Act of 1854, to amend pleadings, and, should have been granted — that Act will certainly authorize the correction of an ambiguity.

If then the declaration had been amended, the evidence was such, that, in our opinion, it would have authorized the jury to find for the plaintiffs.

Consequently, we think that the Court erred in granting the nonsuit.

Judgment reversed.

McDonald, J. absent, on account of sickness.  