—This was an action for rent upon a written lease made by the respondent to the appellant. The respondent contracted in his own name, but described himself as “ agent for the owner,” and added to his signature the words “ for the owner.” The owner, for whom Morgan was agent, was undisclosed and unknown to Reid at the time, and all the engagements of the lease were made with Morgan individually.
The principal objection urged by the appellant is, that the action is improperly brought by Morgan, and should have been brought by the principal, one Mason. Before the Code, the rule in this State was, that actions upon express contracts in writing made by one person in his own name, but for the benefit of another, could only be brought in the name of the agent who made •them, and that parol evidence was inadmissible to bring a new *219party into the contract. (Newcomb a. Clark, 1 Den., 226.) The party for whose benefit the contract was made, must use the name of the party with whom it was made, unless the contract itself was in terms negotiable. The addition of the words “ agent for the owner,” as in the agreement in question here, could not have modified this rule, especially when the owner or principal was undisclosed and unknown.
If the Code has modified the rule so as to permit a suit by the principal in his own name, in all such cases as was held by the general term, in the sixth district, in Erickson a. Compton (6 How., 471), it has not taken away the right of action in the name of the agent with whom the contract is made. Such cases are within the scope of section 113, and the definition there given of a “ trustee of an express trust,” includes in terms such a case as that of the present plaintiff. In the case of Erickson a. Compton, Judge T. R. Strong, in delivering the opinion of the court says, that the Code has given an election in such cases, to sue in the name of the party contracting, or the party in interest. I am satisfied that this is the fair construction of the provisions of the Code which bear upon the question. This disposes of the principal objection in the court below.
The defence set up in the answer, besides a general denial, was, that the suit was improperly brought by Morgan, an eviction by the landlord, and a claim for damages by reason of the premises being untenantable or out of repair.
It may be observed, however, that the lease contained no agreement for repairs by Morgan or his principal. The defendant offered to prove that Mason, the owner of the property, took charge of it before the expiration of the lease, by doing repairs on the house, and also that he took upon himself the collection of rent under the agreement. These offers were excluded at the time, but subsequently the conduct of Mason, the owner, in reference to repairs, was fully gone into the evidence, and the questions of the condition of the house and of eviction submitted to the jury upon the testimony of both the parties to the suit. I do not perceive the materiality of showing that Mason collected or sought to collect the rent in person, unless to let in the proof upon the issue of eviction, or the condition of the property. It is alleged that he waived this agreement of his agent, and made a new one, but there was no offer to show this *220Besides, his demand of rent upon the former contract would not go to prove its abandonment; and in addition to this, his conduct in reference to the matter was fully proved, as I have already said, and the defendant had the benefit of any defence arising from an interference with his rights by Mason. Upon the questions thus submitted to the jury, we certainly should not be justified in interfering with their verdict.
The judgment should be affirmed.