82 N.J. Eq. 481 | New York Court of Chancery | 1913
The rule stated in Higgins v. Senior, 8 Mees. & W. 843, to the effect that a person not a party to a written contract may be shown to be a party by parol evidence, in the absence of ambiguity, fraud, mistake or subsequent contract, has never been adopted by the courts of this state. In Schenck v. Spring Lake
The present case is essentially identical with the case of Schenck v. Spring Lake Beach Improvement Co., supra. Demurrants are not parties to the written contract which is here made the foundation of the suit, and by the arguments in support of the bill it may be regarded as conceded that no written evidence exists establishing the agency of the party who executed the contract. No averment of the bill suggests that the contract was not exactly as the parties to the contract intended it to be, or that complainant did not know that demurrants were the principals in the transaction and that the party with whom complainant was contracting was simply acting as an agent of demurrants. Under such circumstances an averment of the bill to the effect that the principal who executed the contract as a principal was the agent of demurrants must be deemed inadequate to support the relief sought by the bill as against demurrants; it is expressly so held in the Schenck case above referred to.
I will advise an order sustaining the demurrer. Should complainant desire to amend the bill, twenty days from the date of service of the order overruling the demurrer may be allowed for that purpose.