| Ga. | Jun 15, 1869
This was an action brought upon two promissory notes, given for cotton seed. The notes were signed, “ D. Spradley, Agent for Green J. Jordan.” The plaintiff’s declaration prayed for process to issue against Spradley alone, and he was, in fact, the party sued, and served with process. The plaintiff was told, at the time the cotton seéd were purchased of him, by Spradley, that he wanted them for Jordan’s plantation; and did not suppose that Tiller, the plaintiff would have credited him therefor. There can be no doubt, we think, from the evidence in this record, that the cotton seed were purchased of Tiller, the plaintiff, by Spradley, as the agent of Jordan, and for Jordan, and that the plaintiff so understood it, at the time the contract was made. The notes are signed by Spradley as the agent of Jordan, and the seed were purchased for the benefit of Jordan, to be planted on his plantation. The notes sued on, were the contracts of Jordan, and not the contracts of Spradley, his agent; and Jordan was the party who should.have been sued on them, and not Spradley, the agent, who disclosed the name of his principal at the time the contract was made. Chancellor Kent states the true rule on this subject when he says, “ It is a general rule — standing on strong
The fact, that Jordan filed a plea in the case, alleging that the cotton seed were worthless, and calling himself therein, principal defendant, did not make him a party to the suit. There was no process prayed against him as a party defendant, and no effort ever made on the part of the plaintiff to make him a party defendant. The action was brought against Spradley alone, and process prayed against him alone, as the defendant in the action. If process had been prayed against Jordan, as a party defendant in the action, and there had been any defect in the process, or as to the time or manner of service, or want of jurisdiction as to him, then it would have been his privilege to have waived any of those defects, so far as he was personally concerned, by coming in and filing his plea to the action; but the difficulty here is, that there was no attempt whatever on the part of the plaintiff to make him a party defendant to the original suit; and the 3430th section of the Code declares, that “ No amendment, adding a new and distinct cause of action, or new and distinct parties, shall be allowed, unless expressly provided for by law.” In our judgment, there was no error, in refusing the motion to make him a party defendant, by the Court below. The verdict of the jury, in favor of the defendant, Spradley, was right under the law and facts of the case; and there was no error in the Court beloAV, in refusing the motion for a new trial.
Let the judgment of the Court below be affirmed.