James Nolin vs. The State. judgment was rendered in the below. cause, in the court Sec. 5,245 of the Code, secures to the State and to the defendant in a criminal proceeding, except when the defendant has been acquitted, the right of an appeal in the nature of a writ of error to this Court, at the term in which final judgment is rendered. And sec. 5248, enacts that, "no assignment of error, or joinder in error, is necessary in criminal cases taken to the Supreme Court, but the Court shall enter such judgment on the record, as the law demands." But it must be observed, that no appeal in the nature of a writ of error, lies to this Court, only from the term of the court in which final judgment is rendered in criminal proceedings in the court below. It follows, therefore, for the reasons stated, that this cause is improperly brought to this Court; and the appeal must be dismissed, and the plaintiff in error remanded to the Sheriff and Jailer of Montgomery County, to be held subject to the further order of the Circuit Court of said county. And the said Circuit Court of said County of Montgomery, may render such judgment against the plaintiff in error, as the law prescribes upon the said verdict of the jury, found at the September Term, 1868, of said Circuit Court. Charles L. Davis vs. H. D. McKinney and H. S. French. CHARLES L. DAVIS vs. H. D. MCKINNEY AND H. S. FRENCH. 1. AGENTS. Sale to. When the principal becomes liable for contract of Agent. When the Agent is liable. Unknown principal. A purchase made by an Agent, in the name and on the credit of the agent, for a principal n ot disclosed to the seller; the latter may, upon discovering the principal, treat the sale as a contract with the principal, and hold him responsible for the price; or at his election, sue the agent or principal, although the seller at the time, supposed the agent made the purchase for himself as principal, unless it be shown that the sale was upon the sole and exclusive credit and liability of the agent. 2. SAME. Sale made to Agent when real Principal is known. If a sale and purchase be in the name and upon the credit of the agent, and the real principal be known at the time to the seller, the contract will be deemed to be with the agent as principal, and upon his sole liability, exclusive of liability on the part of the actual principal. 3. CASE IN JUDGMENT. Charge of the Court. The Cou below, charged the jury, that if Davis knew that Weakley was the Agent of McKinney, and did not know that French was the donant partner of McKinney, (even if he were so,) and positively refused to sell to Weakley as agent, and refused to recognize any principal, and sold the cotton directly to Weakley, and gave the credit to him directly; then McKinney and French are neither liable. Held that this charge is correct. FROM DAVIDSON. At the September Term, 1867, this case was submitted to a jury, who under the charge of the Court, returned a verdict in favor of the defendants, on which there was a judgment. Plaintiff appealed. Judge MANSON M. BRIEN, presiding. JOHN L. SPURLOCK and H. H. HARRISON, for Charles L. Davis. Charles L. Davis vs. H. D. McKinney and H. S. French. E. H. EAST, M. M. BRIEN, JR., J. C. GUILD, BAXTER SMITH and NEILL S. BROWN, for the defendants. HENRY G. SMITH, J., delivered the opinion of the Court. The action here is assumpsit, against McKinney & French, for cotton sold and delivered; verdict and judgment for the defendants, and appeal in error to this Court. The facts useful to the understanding of this opinion, are substantially these: Weakley was employed by McKinney, to buy cotton in the country, and bought the cotton in controversy here, from Davis. Davis produced evidence tending to show that French was the secret partner of McKinney, in the business of buying and selling cotton; and French produced testimony, tending to show, that he was not the partner of McKinney in respect of this cotton, and that Davis did not sell the cotton to Weakley, as agent, but sold it to him as principal, upon his own credit solely and exclusively. Neither Davis, nor Weakley, appear to have known, at the time, of the sale of the cotton, that French was the partner of McKinney, or had any concern in the transaction. The cotton was burned by incendiaries, and never reached the hands of French. On the one hand, Davis strove to show that French was the secret partner of McKinney in regard to the cotton, and that the sale was to McKinney, for the benefit of himself and French, and so made French and McKinney liable for the price. On the other hand, the effort of Charles L. Davis vs. H. D. McKinney and H. S. French. French was, to prove that he was not the partner of McKinney, and that the sale of the cotton was not to McKinney, but was expressly to Weakley-not as agent, but as principal, and on his sole and exclusive credit and liability; and so, that neither McKinney nor French were liable for the price. The record discloses evidence in both aspects, enough to sustain against reversal here, the finding of the jury, on which side soever it had been; and so the verdict must stand, unless the jury were misled by the instructions of the Circuit Judge. The error assigned is, in the direction to the jury, substantially, this: If Davis knew that Weakley was the agent of McKinney, and did not know that French was the dormant partner of McKinney, even if he were so, and positively refused to sell to Weakley, as agent, and refused to recognize any principal, and sold directly to Weakley, and gave the credit to him directly, then McKinney and French are neither liable, and recovery cannot be had against either. The doctrine governing this case is familiar, and not uncertain. When a purchase is made by an agent, in the name, and on the credit of the agent, for a principal not disclosed to the seller, the latter may, upon discovering the principal, treat the sale as a contract with the principal, and hold him responsible for the price. The seller may have his action for the price, at his election, against the agent, or the principal. And this, though the seller at the time, supposed the agent to make the purchase for himself, as principal. In such case, the contract, though apparently, and in form, with the agent as principal, is, Charles L. Davis vs. H. D. McKinney and H. S. French. in fact, for the benefit of the principal, and in the performance of the agency, and is the contract of the principal. The law regards the reality rather than the form. Parties, however, may give such limits to their contract as they may think fit. They may, if they so choose, so declare and shape their contract as to create rights and liabilities between themselves only, and exclusive of third persons. No rule prohibits an agent from buying goods for his principal, upon his own exclusive credit and liability, and without incurring liability against the principal for the price. So, too, no rule exists, which prohibits a party from making sale to an agent as principal, and, upon the exclusive credit and liability of the agent as principal, and without creating, or acquiring any liability, upon the contract, and for the price against the principal for whose benefit the sale was made. Such contract may be made, and so limited, whether the party for whose benefit the purchase was made were known or not known to the seller at the time. To hold otherwise, denies to parties the power to make such contract as they may think fit. When contracts of the kind referred to, are made, the party making the purchase for the benefit of another, becomes himself the principal in the contract, and is not agent, as between him and the party with whom he deals. No rule of law stands in the way of an agent who buys for his principal, so making the contract as to incur and confine to himself the exclusive liability upon the contract. The fact that the purchase was for the principal, and that the principal was, at the time, unknown to the seller, may become of much significance upon a con |