#### Shadrach Bond and Pierre Menard, Plaintiffs in Error, v. Josiah T. Betts, adm’r, Defendant in Error.

ERROR TO RANDOLPH.

In a declaration on a note of the following form : “ Six months after date I promise to pay Shadrach Bond and Pierre Menard, agents for Warren Brown, the sum of nineteen dollars and twenty-five cents, for value received. Witness my hand and seal,” &c.; the plaintiffs described themselves “ as agents for W. B.” It was held to be merely a description of the persons, and that those words “ as agents,” &c., might be rejected as surplusage.

Opinion of the Court by

Justice Smith.

This case is presented to the court on a judgment on a demurrer to the plaintiffs’ declaration. The demurrer is general, and therefore every inquiry is precluded, whether causes which might have proved fatal, might not have been specially assigned for causes of demurrer. Equally untenable are the objections to the jurisdiction, no plea to the jurisdiction of the court having been pleaded. The declaration shows complete jurisdiction.

The real and only question is, whether the action on the note can be sustained in the manner and form set forth in the declaration. The note is in the following words, viz.: “ Six months after date I promise to pay Shadrach Bond and Pierre Menard, agents for Warren Brown, the sum of nineteen dollars and twenty-five cents for value received. Witness my hand and seal this 20th day of February, 1823.” The promise to pay is directly to the plaintiffs, and the consideration, by the note itself, is, by every fair, and grammatical construction of language, expressed to be received of them.

The addition to the names of the plaintiffs of the words, “ agents for Warren Brown,” in the note, is mere description of the person; it is therefore surplusage, and can not affect the promise. It is evident the words were only used for the purpose of showing, to whose use the money was to be received, and would not control the express promise to pay it to the plaintiffs. The contract and the consideration are expressed without ambiguity or doubt. The language is not susceptible of any equivocal meaning. The distinction taken by the defendant’s counsel in error, in the use of the words “ agent of,” and “ agent for,” is really not understood, nor where the difference lies, which could alter the sense of the language and meaning of the parties. It is supposed that to describe a person as agent of, or agent for another, is synonymous in language and import. The various cases cited by the defend*206ant’s counsel have also been examined. They are considered altogether inapplicable.

T. Reynolds, for plaintiffs in error.

Baker, for defendant in error.

The general principle, in cases of the description within the range of which the present case seems to fall, is, that the words thus used, are mere description of the character or person of the obligee or promisee, and can in no way control, or alter the obvious import of the contract, and intent of the parties to it. This principle is very clearly illustrated in the case of Buffin v. Chadwick, 8 Mass. Rep., 103. The declaration in that case recited the plaintiff’s name, and as suing in the character of “ Agent of the Providence hat manufacturing company,” and the defendant, by the note, promised to pay to the plaintiff as agent of said company, and expressed the value to have been received of the company. Yet the court held that the action was rightly brought, and that the plaintiff, styling himself agent in his declaration, was merely descriptive of the person. The present case, then, is clearly much stronger than that, and the correctness of the principle more apparent. In that case, the consideration' is admitted to have proceeded from the company, in this, from the obligees themselves.

The promise, in the case before the court, being directly to the plaintiffs, the consideration therefor, being expressed to have been received of them, there can be no doubt that the action ought to be sustained.

The addition of “ agents,” is mere description and surplus-age, and can not affect the right to recover. The judgment on the demurrer must therefore be reversed, and the proceedings remanded to the circuit court of Randolph. (1)

Judgment reversed.

(1)

The payee of a note which has been assigned, may sue on it in his own name, without a re-assignment. And if he describes himself in the declaration as assignee, that may be rejected as surplusage. Brinkely v. Going, post.

A declaration on a note stated that it bore date “ on the twenty seventh day of April, one thousand eighteen hundred and thirty-seven.” Held, that the words “one thousand” were mere surplusage, and no ground for arresting the judgment. Bequette v. Lasselle, 5 Blackford, 443.

If a plaintiff states, in his writ, “ that he sues by a conservator,” and if his appearance is recorded in the usual form, and nothing appears from the record that he is under any disability, those words may be rejected as surplusage, and judgment in his favor will not be erroneous. Woodford v. Webster, 3 Day, 472.

The principle of law relative to immaterial averments, extends alike to all the pleadings in a case; and a declaration, plea, or replication, will be sustained, rejecting mere surplusage, if the pleadings would be substantially good without it. Boone v. Stone et al., 3 Gilm., 537.

*207Unnecessary allegations must be proved, if they are relevant to the grounds of the action. The distinction is between what is immaterial merely, and what is wholly irrelevant. The former can not be rejected as surplusage. Commissioners v. Brevard, 1 Brevard, 11.

See also the following cases: Shirtliff v. The People, 2 Scam., 7. Manlove v. McHattan, 4 Scam., 96. Walker et al. v. Welch et al., 14 Ill., 278. Burnap v. Wight, id., 302.