The action is for the value of certain personal property sold by the plaintiff' to the defendants. His Honor assumes that “ the contract was made by Harris, as the agent of Shaffer, as well as for himself.” But he was of opinion that “ the plaintiff shoull proceed against Harris alone, upon the written contract; or against Shaffer upon the alleged verbal contract.” In other words, he was of opinion that although Harris aud Shaffer bought the property jointly, yet, inasmuch as Harris had executed paper A, that had the effect of making a severance ; and the plaintiff was put to his election, either proceed against Harris, on paper A, or else proceed against Shaffer on the verbal contract, but you cannot proceed against them jointly.
If paper A was not subject to the objection that it amounts to nothing, and has no legal effect because of the blank in respect to its most essential part; and to the further objection, that it makes no reference to the contract of sale, and is senseless and unmeaning as a promise to pay, provided, the obli-gee will make a certain settlement; and cannot be connected with the contract for the sale of the property, except by parol evidence, the opinion of his Honor would seem tó'be opposed by the reasoning in Badham v. BraJce, 9 Mason & Welsby 79 ; Wylde v. Northern Railroad Company, 53 New York, 156. But the fact that paper A is blank, in'respect to the *370amount that Harris promises to pay, (to say nothing of the fact that it is senseless and unmeaning without the aid of parol evidence to connect it with the sale of the property.) and has no more legal effect than a blank piece of paper, makes it unnecessary for us to go into the learning upon the subject, as to the right of action against all, when a party has entered into a written undertaking, without disclosing the name of one jointly interested, and for whom he is acting as agent.
Our case is, can the action of a vendor against two parties contracting jointly for the purchase of property, be obstructed by a blank piece of paper, so as to authorize the Court to put him to his election, sue one on the blank paper, or else sue the other upon the verbal contract ?
There is error. Motion for new trial allowed.
Pek Curiam.Venire de novo.