
    Samuel Potts v. John Rider.
    Plaintiff in covenant describes himself in the covenant as acting as agent, but covenants as in his own right, and defendant enters and enjoys. Action maintainable.
    This was an action of covenant, adjourned here for decision from the county of Columbiana. The question arose upon the construction of the covenant, and was presented by a general demurrer to the plaintiffs declaration.
    In describing the parties to the covenant at its commencement, these words were employed : “ By and between Samuel Potts, acting as agent for Nathan Harper and Co., of the one part, and John Rider on the other part, witnesseth.” Throughout the whole covenant, all the stipulations were personal to Samuel Potts, and on his part personal to the defendant; and Samuel Potts executed the covenant in his own individual character.
    The declaration alleged that the defendant had entered into the premises leased, and enjoyed them, and claimed to recover for the occupation.
    The defendant demurred.
    Coeein, in support of the demurrer:
    *The questions arising on this demurrer are:
    1. Can an action be sustained on this article of agreement or 1 ease ?
    
      2. If the instrument is not void, and an action can be sustained thereon, can a suit in the name of Samuel Potts be sustained ?
    1. When an attorney executes a deed or other writing in his own name, though stated to be for and in behalf of his principal, it is void, and no action can be sustained thereon.
    1 Swift Dig. 31; 2 Ld. Raym. 1481; 9 Coke, 77; 1 Strange, 705; 6 Johns. 94.
    2. An action on a contract must be brought by the party in whom the legal interest is vested. 1 Chit. 3; 8 Term, 332; 1 Hen. & Mun. 471.
    A mere servant or agent, with whom a contract is made on behalf of another, can not support an action thereon. 1 Chit. 5, and the authorities there cited; 3 Bos. & Pul. 147.
    D. L. Collier, on the other side, cited 11 Mass. 27, 54, 288, 292; 12 Mass. 137.
   By the Court :

There has been some diversity of opinion amongst us upon the question presented in this case, but a majority of the judges have come to the conclusion that the action may be sustained by the present plaintiff.

The defendant contracted personally with the plaintiff to de certain things, and accepted the personal agreement of the plaintiff as an equivalent. Of this contract the defendant has ha,d the benefit. He entered and enjoyed the leased premises, and there is no justice in permitting him now to say that the contract was.void. The recitation in the covenant that the plaintiff acted in the character of an agent, does not of necessity control the other parts of the agreement. The fact is inconsistent with the personal covenants between the parties, which assume for Potts a different character; and it were safer to consider the words in reference to the agency as surplusage than to give them the effect of rendering void the contract. By adopting this construction, effect is *given to everything respecting which the parties contracted, and injury is done to no one.

The demurrer is overruled, judgment entered for the plaintiff, and the cause remanded for further proceedings.  