
    William M’Williams v. Lewis Willis.
    October Term, 1793.
    Jockey Club -Liability of Agent on Contracts for. The defendant as treasurer of the Jockey Club, agreed to rent from the plaintiff a piece of ground, for the use of that Club, and by an agreement in writing, bound himself to pay the rent, He is individually liable.
    
      Pleading and Practice — Variance—When Immaterial— Casa at Bar. — Declaration, as upon a parol agreement, made by the defendant, to rent of the plaintiff a piece of ground for the use of the Jockey Club. The plaintiff gave in evidence a written agreement, not under seal, corresponding with that stated in the declaration, except that in the former, the defendant is styled Treasurer of the Jockey Club. The written agreement was properly admitted in evidence, and the variance is not material.
    This was an action upon the case, brought by the appellee against the appellant in the District Court of Fredericksburg. The declaration contains two counts. The first states; that a certain discourse was had between the plaintiff and the defendant, concerning the renting of a piece of ground of the defendant’s, for the use of the Jockey Club, whereupon, the plaintiff, (called in the said agreement Colonel Willis) agreed to rent the said ground to the defendant, for the use of the Jockey Club, for the term of seven years, and the defendant agreed to pay for the same, the sum of £30, a year, • the field to be enclosed by the plaintiff, with a good fence, and the defendant, in behalf of the Jockey Club, agreed to have the field restored to the plaintiff at the end of the term, with the fence in as good order, as when it was received, and the defendant, in consideration of the plaintiff’s promise to do every thing &c. on his part agreed to be done promised to do every thing on his part to -.e performed: avers pérformance on the part of the plaintiff, and lays the breach, in the non-payment of 2 years rent, and in not restoring the field enclosed as he received it. The 2d count, is an indebitatus assumpsit for the use and occupation of a race *field, and an assumpsit of the defendant to pay &c. — upon the general issue, the jury found a verdict for the plaintiff — at the trial, the plaintiff produced in evidence, an agreement in writing, corresponding with that .stated in the declaration, except, that the defendant is stiled in the agreement, Treasurer of the Jockey Club, which description is omitted in the declaration. The court, having over-ruled the motion of the defendant that this agreement should not go in evidence to the jury, — an exception was taken to the opinion, and an appeal prayed.
    Warden for the appellant.
    The plaintiff having declared upon a parol agreement, the court ought not to have permitted him to give in evidence, a-n agTeement in writing. The defendant, might probably have made a different defence from what he did, if the case had been truly stated in the declaration. He might have shewn that he was no longer treasurer of the Jockey Club ; or that the plaintiff, was himself a member of that society.
    But if this objection can be obviated, there is a material variance, between the written agreement offered in evidence, and that declared upon. The declaration does not charge the defendant as treasurer, although by the agreement, he had charged himself in that character. As treasurer, it is to be presumed he had funds in his hands, to indemnify himself; and he would therefore have been authorised, (if the judgment had been rendered, against him in that capacity,) to apply those funds to the discharge of it. But as the case now stands, he can neither make such an appropriation of the.funds, if he have them, nor can he have recourse against the members of the Club, if he have them not.
    Upon the substantial merits of the case, the defendant is not chargeable at all. He acted as agent for a society, to whom alone, the credit can be presumed to have been given. It is like the case of a factor, who, when acting for a known principal, is never considered as being individually chargeable. 3 P. Wms. 299, 2 Str. 1168. The case of Macbeath v. Haldimand, 1 Term Rep. 172, is much like the present. Suppose the appellant had ceased to be treasurer, before the expiration of the seven years; it will not be contended that, he could have been liable under this contract, for rents accruing after that time, even if he were so, for rents antecedently due. But the declaration not charging him upon the written agreement, and in his true character, it was impossible for him to avail himself of such a circumstance, if the facts would have warranted it.
    *If these observations be correct, the plaintiff could not, recover upon the first count; and if so, he could not go into proof, to enable him to succeed upon the second — Str. 648.
    Washington for the appellee.
    The first point made by the appellant’s counsel is, that the declaration being upon a parol as-sumpsit, the written agreement was improperly admitted as evidence.
    Ño rule of law to warrant 'this objection is recollected. Where a deed is the foundation of the action, in ought to be declared upon; because the defendant may plead non est factum, and the court upon inspection, may determine, whether the instrument possess the necessary qualities of a deed. No such reason, and therefore no such necessity exists in the case of an agreement, not under seal. It may be pro-
    478 duced as evidence of the agreement stated in the declaration; but the plaintiff must prove the hand writing of the defendant, and must produce such an agreement, as substantially supports the charge, as laid. Doing this, the defendant is exposed to no sort of inconvenience, because the declaration gives him complete notice of the allegation, to which he must answer, and if it do not, the plaintiff must be nonsuited. The defendant is at liberty to give in evidence, upon non assumpsit, any thing material for his defence. In an action upon the case for money lent, the plaintiff may give in evidence a promissory note, 2 Str. 719. This is a very strong case, and not distinguishable, upon principle, from the present.
    The second objection, is founded upon a supposed variance, between the declaration and the agreement. — It is true, that in a special action upon the case, the allegations and the proofs must agree; and so they substantially do, in the present instance. The naming of the appellant, treasurer of the club, in the agreement, is a mere de-scriptio personas, not affecting his responsibility. It is as unimportant, as if he had been stiled, esquire, or yeoman in the agreement, and no notice had been taken of the title in the declaration.
    The third point is more connected with the merits of the case. It is contended, that the appellant was not personally liable —This is by no means a novel case — It is no more, than the agreement of one man, to pay a sum of money for a third person. The agreement in question, is not made with the Jockey Club, nor with the treasurer of that Club, but with William 1VTWil-liams, for the benefit of the Jockey Club, and therefore, he makes himself personally responsible for them.
    *The case of Cullen v. the Duke of Oueensberry, Brow. Cha. Rep. 101, is by no means so strong a case against the appellant, as the present; and yet, it was there determined, that the individuals who contracted for the benefit of a company, were personally liable.
    But at all events, we are entitled to recover upon the second count, notwithstanding the case of Weaver v. Boroughs, 1 Str. 648, which is not law' at this day.
    
      
      Societies — Liability of Persons Contracting for.--Individuals who contract for the benefit of a company or a society, where the credit is given to them, and not to their constituents, are personally liable. Trustees of Presbyterian Church v. Manson, 4Rand. 198, citing Mo Williams v. Willis, 1 Wash. 199. See also, citing tbe principal case, Devendorf v. west Virr ginia, etc.. Co., 17 W. Va. 151.
      . See monograpbic note on “Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co. 27Gratt. 119.
    
    
      
      Pleading and Practice — Declaration—Variance—Effect — In Butcher v. Hixton, 4 Leigh 529, it is said: “It is admitted that assumpsit on an oral contract may be sustained by an agreement in writing to the same effect, M' Williams v. Willis, 1 Wash. 199, 202, yet it cannot be pretended, that an action of debt on a promissory note, could be sustained by evidence of an oral acknowdedgment of debt, or by any express promise by words, to pay the sum demanded in the declaration.”
      See also, citing and approving the ruling of the principal case, but distinguishing it, Brooks v. Scott, 2 Munf. 346, 348.
    
   IfYOHS J.

delivered the opinion of the court.

A parol agreement reduced to writing, does not in any manner change the nature of the contract; the writing is merely evidence of the parol agreement, and being the best evidence, ought to be produced, though not specially declared upon. We can discern no difference betw'een this case, and that cited from 2 Str. 719, where in an action for money lent, a promissory note was allowed to be given in evidence, to prove the charge laid in the declaration.

The variance between the declaration and the agreement, in the former, omitting the addition of treasurer, is not material; and if it were, the defendant might have taken advantage of it, as well in the present mode of declaring, as if the written agreement had been specially set forth. It was as unimportant to name the appellant, treasurer, in the declaration, as it would have been, to give the appellee the title of colonel, because he was stiled so in the agreement. We cannot presume, that any circumstance existed, to do away the responsibility of the appellant, because none are proved, nor even pretended. The person with whom he contracts, cannot be presumed to give a credit to the members of a club, perhaps numerous, and dispersed through different parts of the country. The agreement is made with the appellant, and he binds himself personally to perform it. He is liable therefore, whether he receives the money subscribed by the individual members of the Club, (as in the case of Cullen v. the Duke of Queensberry, cited at the bar) or not. This is not like the case of merchants and partners, because, in contracts made by them, they are all jointly and severally bound for the whole.

In this, each subscriber is liable only for his proportion, and therefore an individual, contracting with the treasurer, knows nothing of the state or value of the fund, which the treasurer does; consequently, he cannot be supposed to go upon its credit.

Judgment affirmed.  