The opinion of the court was delivered by
Pierpoint, Oh. J.The first question raised by the defendant upon the exceptions is, that this suit cannot be maintained in the name of this plaintiff alone, and that Noble A Oo. should have been joined. Under the instructions of the court below, the jury found that at the time the contract on which this action is based was made, it was understood by the plaintiff and defendant to be a contract between the plaintiff and defendant, and not between the plaintiff aud Noble A Oo. on the one part, and the defendant on the other. This being so, it is clear that this action can be maintained in the name of the present plaintiff, notwithstanding, as between the plaintiff and Noble A Oo., said company may have some interest in the contract. The defendant cannot avail himself of such interest, to defeat an action brought upon the contract, as it' was actually entered into understandingly by the parties to it.
*255On trial, the defendant requested the court to charge the jury, that “ unless the plaintiff should show that the weights at which he received the butter of the defendant, exceeded the weights at which the defendant bought the butter of those of whom he purchased it, the plaintiff could not recover.” The court declined so to charge. We think tire defendant was entitled to the charge requested. It was in fact asking the court to charge that the plaintiff could not recover unless he proved the facts alleged in his declaration as the ground of his action. The plaintiff in his declaration alleges, that “ on the 23d of July, 1868, he employed the defendant to purchase for him about 600 tubs of butter, for which the defendant was to pay not to exceed twenty cents in silver per pound, and the defendant was to make true and accurate weights in purchasing the same, and such weights as were allowed by the defendant to those of whom he should purchase said butter, should be allowed to the defendant, <fcc.; that the defendant purchased the butter, delivered the same to the plaintiff, and was paid therefor the sum he claimed to have paid the persons of whom he purchased.” The breach alleged is, that “ the weights allowed by the plaintiff to the defendant were for a much greater amount than those the defendant allowed to those of whom ho purchased, and exceeded by a great many pounds the actual weights thereof, to wit,” &c. ; and also, that “ the defendant, contriving to injure the plaintiff, rendered to the plaintiff an incorrect statement of the weights of the butter he purchased, and so procured the plaintiff to pay him a much larger sum of money than the defendant was justly entitled on delivery thereof as aforesaid.” Under this declaration, all that the plaintiff is entitled to recover for, is the excess of the weight of the butter as represented by the defendant and paid for by the plaintiff, over the weight of the butter as purchased and paid for by the defendant at the time of such purchase. But the county court seem to have placed a different construction upon the declaration, and to have regarded the last clause in the allegation of breaches as enlarging the plaintiff’s right to recover beyond the terms of the contract declared upon, as the court in their charge say, that “ by the construction which the court gave to the *256declaration, the part of the statement referring to the weights at which the defendant purchased the butter, was a clause inserted in the declaration for the benefit of the defendant, and that the plaintiff could recover in this action for the difference between the weights as rendered to him by the defendant, and the true weights of the butter delivered, when delivered ” And in a subsequent part of the charge, after alluding to the averment in the declaration that the defendant represented the weight of the butter as greater than the weight he allowed to those of whom he purchased, the court say : “ The plaintiff does not go for that cause of action, because he does not show by his proof that the weights at which he purchased it of other persons, were variant so far as to predicate a right of recovery upon those allegations.” And then after reciting the last clause in the allegation of breaches, the- court say, that “ under this declaration the plaintiff was to have the butter at the actual weights, irrespective of the weights at which the defendant bought it.”
The whole charge when taken together, narrows the question for the jury to the single point as to the difference between the weight of the butter as the defendant bought it, and ti e weight of the butter when the defendant delivered it to the plaintiff, and this point really lies outside the declaration and the contract. As the plaintiff by his contract was to take the butter at the weight at which the defendant bought it, and did not show and did not claim that the defendant delivered it to him as of any greater weight than he did buy it at, it was clearly error to allow the plaintiff to recover because the butter weighed less when the plaintiff took it than it did when the defendant bought it. It was for this latter difference, under the charge of the court, that the plaintiff recovered, and it was in respect to this matter that the question as to the shrinkage of butter in weight became material.
The defendant also requested the court to charge the jury, that if they found the facts to be as to what took place on the 20th October, 1868, as the testimony tended to show, and the plaintiff executed the receipt and received the butter, then the plaintiff was not entitled to recover.
*257It appears that prior to the 17th day of October, 1868, the dealings in butter between these parties had been quite extensive, and prior to said time, quantities of butter, including the 830 tubs in controversy in this suit, had been purchased, and on. said day the plaintiff called on the defendant for the delivery of a quantity of butter which he had bargained for (which had not been bought on commission), a largo portion of the price of which the defendant had in his h aids, which the plaintiff had advanced to him on account of their butter trade, leaving a balance still duo the defendant of some 1472 dollars. When the parties met, they disagreed as to the terms of the trade, the defendant claiming the plaintiff was to take the butter at the same weights that he had purchased it at, and the plaintiff claiming that ho was to have it at its weight at the time of the delivery. The defendant also claimed that the plaintiff should pay the amount due him on the butter transactions, and close their business, and give a receipt for the butter the defendant then had, and also for the said -330 tubs, and that if the plaintiff would not comply with these claims, he would not deliver the butter. After two or three days negotiation on the subject, the plaintiff concluded to comply with the defendant’s claims, and paid the money claimed, received the butter and executed the receipt, and thereupon the defendant delivered the butter.
To avoid the effect of this adjustment, the plaintiff insists that he acted under duress of his goods; that unless he acceded to the defendant’s claims, he could not get the butter. The answer to this is, that the butter had not become the property of the plaintiff; he had contracted for its purchase, but before the contract was 'consummated by delivery, the parties ascertained that they did not agree as to the terms of the contract, and the defendant refused to carry out the agreement, unless the plaintiff would accede to his understanding of the agreement. The defendant had the same right to insist upon his view of the contract that the plaintiff had. They differed as to the mode of determining the weight, and the defendant’s rule was finally adopted. The defendant insisted that the whole should bo paid for, and thaL he had a right to insist upon ; and as the plaintiff had re*258ceived the 330 tubs in controversy here, and as the rule of ascertaining the weight claimed by defendant was according to the contract as conceded by both parties, the plaintiff yielded nothing in respect to this portion of the butter, in signing the receipt.
Rut. the plaintiff says fmthor, that if he had not acceded'to the defendant’s terms and taken the butter, it would have left the defendant largely indebted to him for moneys paid to the defendant on account of these butter transactions. This may bo so ; but it does not constitute what the law terms duress ; it is the common case of the man who makes better terms with another who owes him, than he would if he did not. Resides, it does not appear that the plaintiff acted from any such consideration, or that he asked for the money, or that he could not have had it if he had asked for it. We think the defendant was entitled to the charge requested in this respect.
We think the depositions objected to should have been excluded. The only material matters that are testified to in those depositions, are matters that the witnesses themselves say they had no personal knowledge of, and of course their evidence was inadmissible; and the error is not cured by the instructions to the jury, not to regard such testimony if they found the witnesses had no personal knowledge of what they swore to. The jury would be very likely in such a case, to bo influenced and misled by such depositions.
Judgment reversed, and case remanded.