52 Ga. 129 | Ga. | 1874
1. We are not clear that this suit might not legally’have gone on in the name of Blackwell. The rule, as laid down by Chitty, 1 volume, 7, 8, is that if the contract be in' the name of the agent, he may sue. - As a matter of course, the defendant’s plea would still be good, if sustained by the evidence, except as against any actual interest there might be in the agent. But the court was right in permitting the amendment. We decided in Burke vs. Steel, 40 Georgia, 217, that the plaintiff might, at his option, declare whose use he sues for. It is nobody’s business, unless the effect of that declaration is to prevent some defense the defendant would otherwise have. In this case, the effect of the amendment is only to put the case exactly where the defendant claims it ought to be. As amended, the defendant’s plea is a good defense to the declaration. We can see nothing the defendant can object to. Now his plea is a good plea, since the plaintiff admits that he is suing for the use of Stephens. As we have said, we do not hold there was any amendment necessaiy, the written paper on which the action is brought being to the agent. But if the plaintiff, of his own motion, proposes to recognize the defendant’s plea, and acknowledge himself to be only a nom
2. Nor was it the duty of the court to continue the case. The amendment was no surprise; indeed, it only put into the writ the defendant’s plea. As a matter of course, he came to the trial expecting to support his plea. Had he clone this, he must, under the amended declaration, have had a verdict.
Judgment affirmed.