Opinion
August Term, 1857.
A covenantee is essential to be named in a covenant, except in dedications of land to public uses.
Where a writing under seal, intended to evidence the sale of an article of personal property, was inoperative for the want of form, it was Held, that an action of assumpsit would lie on the parol contract, made at the time of its execution, and that parol evidence of such contract was admissible, independently of the terms contained in such ineffectual writing.
ACTION of ASSUMPSIT, tried before ELLIS, J., at the Fall Term, 1856, of Caldwell Superior Court.
The plaintiff declared for the breach of a parol warranty of a jackass. He proved the sale, and the warranty declared on by parol, but upon cross-examination of the witness it appeared that, at the time of the sale, the following instrument of writing was executed, and delivered to the plaintiff, viz:
"STATE OF NORTH CAROLINA, } Caldwell County. }
This jack, known by the name of John Bell, which jack is sound as far as I know, and never has been sick since I have owned him; which jack I enwarrant covers well, and a good foal getter; this the 2nd of October, 1852.
W.H. EDMONDSTON. (Seal.")
Whereupon, the defendant objected to the parol evidence to prove the warranty, insisting that the whole contract between the parties, being in writing under seal, it could not be proved in any other way than by the writing. He also contended for the same reason, that the plaintiff's action should have been brought on the sealed instrument, and should have been "covenant," instead of "assumpsit."
The court permitted the plaintiff to give the parol evidence, and the trial proceeded, the above question being, with the consent of the parties, reserved by his Honor, with leave to enter the judgment which his opinion of the law might require. The plaintiff obtained a verdict, and afterwards the court, being of opinion against the defendant upon the question of law reserved, gave judgment in favor of the plaintiff; from which the defendant appealed.
Avery, and T. R. Caldwell, for the plaintiff.
Gaither, for the defendant.
A covenant is defined to be "the agreement or consent of two, or more, by deed in writing, sealed and delivered; whereby, either, or one of the parties, doth promise to the other, that something is done already, or shall be done afterwards. And he that makes the covenant is called the covenantor, and he to whom it is made, the covenantee." Shep. Touch. 160. (20 Law. Lib. 293.)
It seems to be clearly implied by this definition, that the two or more persons, whose agreement or consent is thus manifested by a deed, must be named in it, and we are not aware of any respectable authority to the contrary. A covenantee is as necessary to be named in a deed of covenant, as a grantee is in a deed of grant; and in the latter, it is well known that the grant will not operate where there is no named grantee, except in the case of a dedication of land to the use of the public, where the instrument, or act of the owner, takes effect ex necessitate rei; otherwise, the public could not have the use of the land, for the want of a grantee to take it. See Reeves v. Dudley, 3 Jones' Eq. Rep. at p. 136, and the cases there cited.
An instrument, sealed by one party and not the other, may be a covenant as to the first, and only a written promise by the second. 1 Ch. Pl. 119. "But, (says Mr. Chitty), it appears to be essential that the party claiming the benefit of the covenant, shall be named therein as the covenantee."
If this be law, as we think it is, it sustains the form of the plaintiff's action, and is a complete answer to to the defendant's first objection.
The second ground of defense is equally untenable. An agreement in writing, though not under seal, requires two or more parties to it, and it seems to us, that they must be named in it to make it a complete written contract. If only one of the parties be named, then, as to the other, the contract is by parol, and as one of the essential parts of it, as a contract, must be proved by parol, we see no reason why all the terms should not be proved in the same manner. This is not a case within the statute of frauds, which makes a contract sufficient to bind the party who has signed a written note, or memorandum of it. But if it were, we have never understood that the other party need not be named in it. In the case of Miller v. Irvine, 1 Dev. and Bat. Rep. 103, this Court decided against the opinion of one of the Judges, that the statute of frauds, in the cases coming within its provisions, did not require the consideration of the contract to be set forth in the note or memorandum; but the whole argument in the opinion delivered, goes to show that nothing else essential to the contract could be safely omitted.
PER CURIAM, There is no error. Judgment affirmed.