31 Pa. 80 | Pa. | 1856
The opinion of the court was delivered by
The filing of these instruments in this suit, involves the charge that they are the promises of the defendants by their agent, and such would be the allegation of the declaration. Even assuming that primá facie they are the agents, the plaintiff might prove the contrary, 17 Wend. 40; 1 New Jersey 683 ; and must do so in order to succeed, if the defendants deny it in the form required by law. Of the bills, this could not be, if they had been drawn on and accepted by Chambers, without any notice of his representative character. If the suit had been brought and the claims filed against him, this would have involved the allegation that he was not the agent of the company, though professing so to act; and he would have been under the necessity of meeting this by affidavit. There are cases enough showing that the averments necessarily involved in the plaintiff’s case must be so met: 2 W. & S. 447, 553; 2 Whart. 177; 18 State R. 354. If the suit be against one man, and notes are filed to which he has no appearance of being a party, the suit cannot be on them; and we cannot imply an averment that he is a party. But here the record raises the implication of an averment that the defendants are the real promissors.
Judgment affirmed.
