90 Pa. Super. 269 | Pa. Super. Ct. | 1926
Argued December 13, 1926.
We would be disposed to affirm the judgment entered by the learned court below for part of the plaintiff's claim for want of a sufficient affidavit of defense, on the authority of the decision of the Supreme Court in Artzerounian v. Demetriades,
"The general rule is, that the action should be brought in the name of the party whose legal right has been affected": 1 Chitty on Pleadings 1. "It is an inflexible rule, that if a deed be inter partes, that is, on the face of it expressly describe and denote who are the parties to it, (as `between A. of the first part, and B. of the second part,') C., if not expressly named as a party cannot sue thereon": Ibid p. 3. "In [the case of a contract under seal] the implied right of *272
action of the principal merges in the higher security taken, by his authority, by the agent, and the remedy is in the name of the latter only": Ibid p. 9. "The party having the legal cause of action can alone be plaintiff": 2 Troubat Haly's Practice (Brightly's Ed.) sec. 1655. These eminent authorities are supported by a wealth of decisions, among which may be cited: Ardesco Oil Co. v. North American Oil Mining Co.,
While the Act of May 25, 1887, P.L. 271, abolished actions of covenant and provided that all demands theretofore recoverable in covenant should thereafter be sued for and recovered in an action of assumpsit, it made no change in the practice as respects necessary parties to the action. The rule remains the same, that, unless provided otherwise by statute (See Negotiable Instruments Act of 1901, P.L. 194, sec. 6, par. 4), action on a sealed instrument must be brought in the name of the legal party to the contract; or at the least, it must appear from the deed or writing sued upon that the contract was in fact made for the benefit of the plaintiff in the action: Brill v. Brill,
The agreement of sale in this case did not expressly stipulate by clear, precise and unequivocal language that the purchaser might terminate it by his own default. In the absence of such a stipulation, a provision in the contract, that in case the purchaser shall fail to make settlement for the premises as therein provided the agreement shall become null and void and the sum or sums paid on account of the signing of it shall be retained by the seller as liquidated damages for the breach of the agreement, is presumed to be for the benefit of the seller, who may elect either to assert and enforce the forfeiture, or to insist upon the performance of the contract: Cape May Real Estate Co. v. Henderson,
The judgment is reversed. *274