By the Court.
Benning, J.delivering the opinion.
[1.] The charge requested should, we think, have been gi‘•ven. In our opinion, “ a mere substitution by the plaintiff of Rogers & Meara as debtor, in the place of Brown & Harris,” would, of itself have abrogated the debt as to Brown & Harris. That, as we conceive, would be the necessary effect of such a substitution.
And because the Court failed to give this charge, we grant a new trial.
*407Some remarks may, however, with propriety, be made on the other points in the case.
The first of these was, that the testimony of S. M. Lanierproved a different cause of action from that sued on; and; therefore, should not have been received.
The cause of action which that testimony proved, was &>. contract of Brown & Harris made with Isaac C. Harris, as¡ the agent of some one, whom the testimony did not show.. The testimony, therefore, showed a cause of action in favor of some person other than Sao-ris. The cause of action suedi on, was sued on by another person than Harris, viz: Alsa-. brook. The testimony, therefore, was not inconsistent with the cause of action.
This first point, therefore, is not true in fact.
The second was, that it was sought by the testimony to., vary the contract — a contract which it was shown was in wri-.. ting. The meaning of this probably is, that the contract, as 4 it was proved, did not show upon its face that Isaac C. Harris, one of the parties to it, was a party to it as agent; and; the testimony of Lanier went to show that Harris was a party.to it as agent.
But does it follow, that when a contract is merely silent as 4 to whether a party to it is a party as principal or a party as 4 agent, it varies the contract to show that he is a party to it, as agent ? In such a case, is it inconsistent with what is ex-. pressed, that the party should be a party as agent ? If it is,, then when a written contract is silent as to whether a party - to it is principal or is surety, it is equally inconsistent with . the contract that he should be a surety. Yet, it is generally agreed, that the party’s being a surety is such a ease as is not inconsistent with the contract. That, clearly, is the view which our law takes of the matter; for it allows sureties to, make ‘‘special defence i. e. to show that they are sureties: for the purpose of acquiring the right to control the judgment; and to do this even after -judgment. (Cobb’s Dig. 593.)
*408We, therefore, are not prepared to say that the Court erred', with respect to this point.
As to the grounds of the motion for a non-suit, if the proof was defective as to Alsabrook’s “ interest in the subject matter,” i. e. was defective in not showing that he was the person’ who was the principal, of whom Isaac C. Harris was agent,, the deficiency may, perhaps, be supplied on the new trial.
The proof, as it stands, is, that Harris was agent for somebody ; and Harris is representing Alsabrook in the' case.
That is an admission which is good (so far as he is concerned) to show that Alsabrook was the person for whom he was agent. Is this enough ? Hardly, perhaps. But this, question was not argued.