
    L. Watts, v. H. Buck.
    The Court will not grant a motion for non-suit for the non-joinder of a party, when it does not clearly appear whether the party not joined was a party to the contract, or a mere agent of the plaintiff.
    The possible outstanding claim of one, not before the Court, upon a vendor who brings suit on his account, cannot legally justify the vendee in withholding the price agreed upon.
    Tried before Mr. Justice Richardson, at Horry, Spring Term, 1846.
    This was assumpsit lor several rafts of timber delivered at Bucksville; and also upon an order drawn by Buck’s agent, in payment for the timber.
    This order was charged to have been accepted by Buck. The defence was, that one Cade owned a part of the timber, and he ought to have been joined in the action.
    Upon receiving the timber at Back’s Mill, Delettre, the agent of Buck, gave the following order and acknowledgement to plaintiff.
    Order.—Mr. H. Buck will please pay L. Watts, one hundred and twelve dollars, 25-100, for two rafts of timber, purchased from him this morning. Signed, W. A. Delettre. $112 25.
    Watts called on Buck, who had gone to Conwayboro.’
    The evidence of Buck’s acceptance of the order, and of the delivery of the timber at his mill, was as following:
    W. Prince. Delettre gave this order to plaintiff—he transacts defendant’s business.
    Plaintiff told defendant he had such an order. Defendant said he wanted Cade and Watts to settle, and was ready and willing to pay it.
    The timber was delivered at defendant’s mill for plaintiff. Plaintiff and Cade claimed the timber together: that is, Cade had a part. Plaintiff hired him and the Watts’ for wages, to get the timber,—Cade said he was to have a part for hauling. Witness helped to haul. Cade was to pay one half the stump-age, and plaintiff the other half. Cade was to pay ox-feed and $17 over, of his part, and he sold twenty dollars worth of the timber.
    Plaintiff here closed, and defendant’s counsel moved for a non-suit, which was refused.
    The defendant then proved the following paper given by plaintiff, after the timber had been delivered and the order given.
    John H.Cade, v. John Watts, Levy Watts, EveretWatts, Wm. li. Prince.'—Bail writ in trespass.
    
    
      ~Wc, the above named defendants in this case, do hereby for ourselves, heirs, executors, administrators and assigns, remise and release forever all right and title to rafts of timber, which are now in the possession oí the said John Ii. Cade, upon his coming forward and paying all costs and charges in the above named case.
    
      In witness whereof, we have set our hand and seals, 27th day of March, 1845. this
    Witness,
    John Bruton, James Potter.
    
      Signed,
    
    h:s John ¡x] Watts. Levy ¡x! Watts. Everet ¡H Watts, Wm. R. fx¡ Prince.
    See Potters & Hughes’ evidence, on the manner of getting this paper.
    T. H. Holmes then proved for defendant as follows :
    Plaintiff said Cade had one half of timber, but the ox-feed to come out in consequence.
    B. Defendant paid him $15, and witness $16 86—-$31 86. Defendant told them he was ready to pay, if they would settle among themselves.
    Delettre drew the order at the mill when the timber was delivered.
    Buck was at Conwayboro’ at the time.
    
    The presiding Judge charged the jury,
    First. That the delivery of the timber by the plaintiff to Delettre, the agent of the defendant, being proved, the plaintiff might recover upon his general count for the timber, independent of the order of Delettre upon defendant. That this order, whether accepted or not, proved by its terms, the timber delivered, and by the plaintiff; and was good evidence of the fact, under the hand of Delettre; and that the contract was with plaintiff.
    Second. That although other persons, as Cade, Holmes, &c., might have been interested in the timber with Watts, yet this was no reason why Watts should not recover, on his delivery of the contract. Watts would be liable to them if they had any right. But as far as defendant had actually paid such persons, it might be good for so much. Defendant ought, therefore, to be allowed the $31 86, he had paid to Holmes and Cade. But he could not, therefore, get rid of the action of Watts, without having paid in full, merely because such supposed claimant had not joined in the suit: and when it appeared that Watts was the vendor of the timber.
    Third. That independent of the manner in which the release was obtained by Cade, while Watts was in jail, he perceived nothing in its terms, that could release the right of action of Watts in this case.
    The jury found for plaintiff the balance, and the defendant renewed his motion for a non-suit in the Appeal Court, on the following grounds:
    1st. Because it appeared by the plaintiff’s own showing, that there were other parties interested in the timber, who ought to have been joined in the action.
    2d. Because the plaintiff’s declaration counts upon an accepted order by the defendant, whereas it appeared by the plaintiff’s own proof, that he refused to accept it.
    And for a new trial, on the following ground:
    That by the release of Watts to Cade, the whole interest in the timber, vested in the latter—who, by virtue thereof, is entitled to recover the amount from the defendant, notwithstanding the present recovery.
    Munro & Wilson, for the motion.
    Evans, contra.
    
   Richardson J.

delivered the opinion of the Court.

There is no question of the legal principle, that all the parties to a contract made with another, who, by such contract, becomes their debtor, must join in the action to recover the debt due. But what is the evidence?

1 st. Delettre, the mill agent of defendant, acknowledges in what has been called an order, that the two rafts of timber were purchased of L. Watts, the plaintiff, for the defendant. 2d. Prince, the plaintiff’s witness, states that the timber was delivered at Buck’s mill, for the plaintiff, and thereupon Delet-tre gave the order, which acknowledges the timber to be purchased of L. Watts.

But Prince further states, that Watts and Cade claimed the timber together; i. e., Cade had a part “that Watts hired them,” and the two Watts’, for wages, and relates the particular interest of Cade; (see the c* idence of Prince.)

The non-suit was ihen moved for, because Cade had not joined in the action. But it is plain, that the Court at least could not, from such evidence, assume that Cade was the partner of Watts, and not his mere agent, like witness himself, and the two other Watts;’ and when too Dclettre had purchased and received the timber of L. Watts alone, who, in the sale and delivery, appears as the sole vendor, and must at least prima facie be so considered. The plaintiff, therefore, had not put his case, so plain before, out of Court, upon the mere doubt of the precise interest of Cade, i. e., whether he was a principal owner or the agent of plaintiff, in getting out the timber upon certain terms agreed upon. It followed that the plaintiff then had a “prima facie” case, which must go to the jury. This disposes of the appeal requiring á non-suit. The motion for a new trial depends upon the effect of the release by the plaintiff, and by J. and C. Watts, and Prince, to Cade, of two rafts of timber, then in the possession of Cade. This release is dated two days after the delivery of the two rafts at Buck’s mill, and possibly may refer to the same timber, and may possibly amount to a virtual assignment by the plaintiff, Watts, of his sale of the timber to the defendant, made two days before. As Cade is not a party to the present action, I would not decide what may be its proper character and effect upon the rights of the plaintiff’s demand upon Buck for the amount of the sales. The sales by Watts are certain, and Buck ought to pay the amount to Watts, or somebody. The release can, in no view of it, do more than assign to Cade the account of Watts against Buck. But that cannot change the form of the action. It may be still in the name of the vendor. Watts, although for the use of his assignee, Cade, of an open account for the timber sold and delivered. There may be some uncertainty, and perhaps two opinions, upon the exact, eventual interest of Cade. He is not before the Court, but how his possible outstanding claim upon the vendor, Watts, can legally justify the vendee in withholding the money, I cannot perceive.

The motions are therefore, dismissed.

O’Neall J., Evans J., Frost J., and Withers J., concurred.  