#### JOSEPH HARDY & AL. *vs.*JOHN WILLIAMS, ADM’R.

Where A. rents out land belonging to B., B. cannot recover against the lessee upon a count on Hie agreement for rent of the land, because there was no privity between the latter ánd B., unless B. can'shew that *A¿*acted as his agent.

For the same reason a count «pon an implied assumpsit cannot be maintained by B. against the lessee, there being no privity between them, and there being an express contract by the lessee with A.

Appeal from the Superior Court of Law of Bertie Count}-, at the Fall Term, 1S48, his Honor Judge Bailey presiding.

This is an action on the case in assumpsit. The declaration had three counts. 1st. A special agreement for the rent of land 2nd. For use and occupation oí land. 3rd. For money had and received. The plaintiffs proved, that they owned the land as the heirs at law of Edward Hardy : That in the year-one W. W. Cherry, acting as the agent of Mrs. Hardy, who was the admin-istratrix of their father, rented the land to one Holly, at the sum of $ — — per annum, for three years: that Holly assigned the lease to said Cherry and the intestate of the defendant, who occupied the premises one year, when they assigned to one Wilson Cherry, who occupied it one year. It does not appear whether any rent was paid or to whom, nor does it appear who occupied the premises-the third year.

The defendant read in evidence a decree in a suit of the plaintiff against Mrs. Hardy, in which she was charged with the rent of the- land. It did not appear that the decree had been satisfied.-

*178His Honor instructed the jury, that the decree was no defence, and that if the evidence was believed, the plaintiffs were entitled to recover. The jury found for the plaintiffs, assessing damages for the three years. Judgment for the plaintiffs and the defendant appealed.

No counsel for the plaintiffs.

*W. N. TL Smith,*for the defendant.

Pearson, J.

His Honor erred in holding, that the plain tiffs were entitled to recover. Upon the first count, they could not recover, because there was no privity, between them and the intestate of the defendant. To create a privity, it was necessary to prove, that Mrs. Hardy,in renting the premises, acted as their agent, in which case they would be allowed to sue in their own names, the contract being made for them, although the agency was not expressly made known at the time of the renting. There is, in this case, no proof of an agency. The fact, that the land belonged to the plaintiffs, had no tendency to prove it. Indeed, Mrs. Hardy seems to have acted under the impression, that she had a right to rent the land, as the administratrix of Edward Hardy. It was at the election of the plaintiff to treat her as a wrong doer or a,g their agent, but they are not at liberty, by *supposing*her to be an agent, thereby to affect the rights of third persons and make a privity when none before existed. The defendant’s intestate as lessee of Mrs. Hardy was es-topped from clenying the title of his lessor, and in an action by her,"could not defend, by showing title in a third person, and that he had *paid the rent to*that third person.

The same objections apply to the second count, assuming that an action on the case for rent can be maintained upon an implied assumpsit, on the authority of the case of *Hayes*v. *Acre,*Conf. Repts. 19., and *Cummings*v. *Noyes, 10.*Massachusetts Rep. *443.,*which are opposed to the *179English cases, unless the contract is admitted by the pleadings. *Mason*v. *Beldham,*3 Mod. 73. *Shuttleworth*v. *Garnet,*id. 210. Buller’s *nisi prius*138. In England the action is given by, 11 Geo. 2. ch. 13. In this case there is no privity between the plaintiffs and the defendant’s intestate, from which a contract can be implied. It is true, that in many cases, for the sake of the remedy, a tort may be waived, and assumpsit brought on an implied contract, but that is never allowed, when there is an express contract with a third person, for it involves an absurdity to imply a contract to pay one person, when there is an express contract to pay another, and the implied contract will be no answer to the action of the latter, as it would not be in this case, for the reasons above stated.

The third count cannot be sustained, for there is no proof, that any money was received by the defendant’s intestate.

It is unnecessary to notice the othér point'in reference to the decree. This action seems to have been brought by the plaintiffs, who are infants, instead of being brought by Mrs. Hardy, with whom the contract was made, to avoid the statute of limitations. We think the action will not lie in their names.

There must be a *venire de novo.*

Per Curiam. Judgment reversed and *venire de novo.*