#### Samuel L. Gouverneur, Thomas L. Smith, and Charles Gilfert. *versus.*Henry Elliott and Celeste his Wife.

A contract in writing and under seal, so executed as not to be binding upon either party, but which has been acted upon by them, may be given in evidence, in an action of assumpsit, to recover the balance of an account, for the purpose of shewing the terms on which one party made advances and the other performed services.

G. S. and G. the lessees of a theatre by their agent advanced certain sums of money to the defendant Celeste as a performer under an agreement, that she should be under the exclusive direction of one of the lessees, who was the Manager of the theatre. In an action brought to recover back a part of the advances so made, it was held that the action was properly brought in the name of *aU*the lessees; and that the circumstance of the performers being under the exclusive direction of one of the plaintiffs did not vary the form of bringing the aetion.

The jury must pass upon all the facts proper for their consideration and if they have not done so the Court will grant a new trial, without considering on which side the weight of evidence lies.

Assumpsit brought by the plaintiffs to recover from the defendants, the sum of *$132,*being tbe alleged balance of an account due from the latter to the former. The cause was tried before Mr. *212Justice Hoffman. At the trial it appeared, that, the plaintiffs were of the Bowery Theatre in the City of New-York, and that the defendant Celeste w.as a dancer at that Theatre. The plaintiffs on their part offered evidence to show, that in the month of April, 1827, they had engaged the services of Celeste in France, and before her marriage with the defendant Henry Elliott, at a salary of $37.50 per week. That she received of them an advance of $473, before her departure from France, and a further advance, on her arrival in this country, of $280, to defray the expenses of her own passage and that of her mother. Celeste performed at the Bowery Theatre, until it was destroyed by fire, on the first of June, 1828, and the plaintiffs, by their accounts, after giving her various credits, brought her in debt to the amount above claimed. During the period of her engagement at the theatre, Celeste married the defendant Henry Elliott, and the plaintiffs caused their accounts (claiming a balance of $132) to be presented to the defendants, who made no objection to them.

The defendants, on their part, introduced in evidence a certain agreement under seal, bearing date at Paris, the 12th of April, 1827, purporting to be “ between Charles Gilfert, of the City of “ New-York, Manager of the New-York Theatre, of the first part, " and Celeste Keppler of the second part.” It stipulated, that Celeste, for and in consideration of the covenants “ on the part “ of the said Charles Gilfert to be performed,” would perform at the Bowery Theatre for the space of two years, “ under the di- “ rection, management, and appointment of the said Charles Gil- “ fert,” at and after the rate of $37.50 per week, during the period of her engagement, and that *Gilfert*would pay, or cause to be paid, to Celeste her said salary. This agreement was duly sighed, sealed, and delivered in the presence of a witness, and was executed by “ Samuel Gouverneur, Jr. agent for the proprietors of “ the New-York Theatre,” of the one part, and Celeste Keppler, of the other part.

By additional articles, it was further stipulated, that Celeste should receive an advance of $473, in Paris, and that the plaintiffs should also, on her arrival in New-York, advance a sum sufficient to defray the expenses of her *passage;*each of which sums was *213to be reimbursed at the rate of $5 per week, by a deduction from her salary.

Madame Keppler, the mother of Celeste, being called as a witness, testified, that she was present at the execution of said agreement, and that the witness thereto, (a person belonging to the Italian Opera,) was not in this country.

After the agreement was executed, S. Gouverneur, Jr., and Severin, (the witness to the agreement) demanded $173, *“for “ their*commission,” and of the $473 mentioned in the contract, Celeste received the sum of $300, and no more.

The counsel for the plaintiffs objected to the production of the agreement in evidence at all; or at all events, until the defendants proved, that Gouverneur had signed it by virtue of an authority derived from the proprietors of the theatre. The objection was overruled by the presiding Judge, and the counsel for the plaintiffs excepted to his decision.

Madame K. then further testified, that by virtue of this agreement, Celeste came to America, and arrived at New-York on the first of June, 1827. Upon her arrival, she went to the Bowery Theatre, of which Gilfert was manager, and performed there under the agreement, until the theatre was destroyed by fire. Fifteen days after the destruction of the Bowery Theatre, Celeste obtained employment at the Park Theatre, but no salary was paid to her by the plaintiffs, for the time she was out of employment. The witness further testified, that Celeste was born in the year 1810, and was not yet nineteen years of age.

The defendants claimed a balance in *their*favour, insisting that the sum of $173, retained by Gouverneur and Severin, was improperly retained, and that she was entitled to her salary for the fifteen days subsequent to the burning of the theatre.

The Judge charged the Jury, that if they believed, that the advances of money made to Celeste by the plaintiffs were made under the agreement, and if she came to this country, and put herself under the management of Gilfert in pursuance thereof, then that the action should have been brought in the name of Gilfert alone, and could not be sustained by the present plaintiffs. If the Jury came to this conclusion, they were instructed not to trouble *214themselves about the accounts at all, but to find for the defendants. If, however, they came to a different conclusion, they were instructed to examine the accounts, and find a verdict according to the evidence before them.

The counsel for the plaintiffs then prayed the Judge to charge the Jury, that if they believed, that the agreement made in France had been adopted by the plaintiffs, and not by Gilfert alone, then that the action was properly brought in its present form : but the Judge refused to give this instruction, and the counsel for the plaintiffs excepted to his opinion. *.*

The Jury found a verdict for the defendants, and the plaintiffs now moved for a new trial, on the ground of a misdirection.

*Mr. J. Blunt,*for the plaintiffs, contended,

I. That the agreement was not proved to be executed in such a manner as to bind the plaintiffs. If an agreement under seal be executed by an agent, then the power of the agent must be shown to be under seal also. [5 *Mass. R.*40. 2 *Kent’s Com.*478.] It should, at all events, have been shown, that the agent was authorized to sign for Gilfert, in order to sustain the Judge’s charge ; but, in point of fact, it was executed by Gouverneur, not as the agent of Gilfert, but for the proprietors of the Bowery Theatre.

II. If the agreement was adopted by the plaintiffs, then the action was properly brought in their names. But this question was taken from the consideration of the jury, and they were thereby ■misled, and by their verdict, they found that the contract was adopted by Gilfert alone. For these reasons, the Jury have not passed upon the proper questions of fact, and there should be a new trial.

*Mr. E. Curtis*and *Mr. D. B. Tallmadge,*for the defendants, *contra,*insisted,

I. That the agreement was properly admitted in evidence, because it was proved, that the performance of Celeste at the theatre, was solely under that agreement. The Judge correctly decided, that the plaintiffs could not maintion this action, and it is therefore immaterial whether the person in whose name *215it should be brought was properly pointed out or not. It is sufficient, that the plaintiffs are not the proper parties.

II. The Judge correctly decided, that the Jury were not to pass upon the question as to whether the plaintiffs had or had not adop*t*ed the agreement. That could not change the form of the action, or the parties to it; but the plaintiffs, if they had rights under the agreements must assert them in the name of the person, who made the sealed contract. This is an agreement *inter partes,*and the action must be brought in the name of the person with whom the agreement was made, let the beneficial interest be where it may. This is a fixed rule of pleading.

III. The defendant Celeste was an infant, and that is a sufficient bar to the action. But even if the action is properly brought, and can be maintained in its present form, still the Court will not disturb the verdict; because, upon examining the accounts, it will be found, that there is a considerable balance due from the plaintiffs to the defendants.

Oakley J.

The plaintiffs in this case, were proprietors of the Bowery Theatre. On the 12th of April, 1827, an agreement was entered into at Paris, between S. Gouverneur, jr. professing to act as agent of the said proprietors, and Celeste Keppler, now Elliott, by which the latter engaged to serve at the said theatre, as a dancer, for the term of two years, from the 1st of May then next, at a certain weekly allowance. Advances of money were made to her, on entering into the engagement, and also to pay her passage to this country; which, by the terms of the contract, were to be reimbursed, by retaining a certain sum from her weekly stipend. She came to New-York, in pursuance of this agreement, and continued to perform under it, until the destruction of the theatre by fire. Soon after that event, as may be inferred from the facts stated in the case, the contract was abandoned ; and this action is now brought to recover a balance alleged to be due to the plaintiffs on account of the advances made by them.

*216The objection taken at the trial to the plaintiffs’ recovery was, that the action ought to have been brought by *Gilfert,*one of the plaintiffs, alone. The agreement in question, appears to have been entered into in the name of *Gilfert*alone, though it was signed by Gouverneur, as agent of the proprietors of the theatre. No authority was shown on the part of *Gouverneur to*enter into the contract, either for *Gilfert*or the proprietors, nor was the contract executed in such a manner, as to bind either of them, or the agent himself. The Judge, however, charged the Jury, that if they believed that the agreement given in evidence, was the one under which *Celeste*had received the advances in question; that she had performed under it, and put herself under the direction of *Gilfert,*in pursuance of it, then the action should have been brought by Gilfert alone, and that in that case, they ought to find a verdict for the defendants; and the Jury found accordingly.

It appears to me, that the Jury were misdirected. The money received by Celeste, was no doubt advanced under the agreement, but it was advanced for the plaintiffs; and the fact, that she placed herself under the direction of *Gilfert,*as the manager of the theatre, cannot, I apprehend, be considered as giving him a right to sue, in his own name, to recover back the money advanced by the proprietors, of whom he was one. The agreement itself cannot be the ground of an action. It is only important to show the terms on which the advances were made, and the services rendered. The whole transaction amounts to nothing more than a contract between the plaintiffs and Celeste, under which she has rendered certain services, and received certain advances; and the accounts between them may, for aught I see, be properly adjusted in the present suit.

It is suggested by the defendants’ counsel, that it appears from the statement of the accounts, that there is actually abalance due to them. This fact, however, was never passed upon by the jury, and the same remark may be made as to the suggestion, that the infancy ’of *Celeste*shows a complete ground of defence in the suit. The jury, in giving their verdict, no doubt conformed to the direction of the Judge, and if that was erroneous, the plaintiffs *217ought to have an opportunity of repelling, more particularly, the other grounds of defence.

*New trial granted.*

[A. N. Grouverneur, *Atty. for the plffs.*E. Curtis, *Atty for the defts.]*

Note.—Upon the new trial, the Jury, upon examining the accounts, found a verdict for the defendants.