JOSE MARIA RUIZ, FRANCISCO RUIZ and MANUEL RUIZ, doing rusiness as "RUIZ, HERMANOS," Respondents, v. JOSHUA NORTON and WILLIAM SIM, doing business as "JOSHUA NORTON & CO." Appellants, 4 Cal. 355

Mr. J. Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. In this ease the plaintiffs sue upon a written contract, wherein one of their stipulations is to deliver the defendants a certain quantity of sound rice. It will not be disputed that every one must be held bound by the plain and obvious meaning of his engagements. The plaintiffs, to maintain their action, must show that they have done all which they agreed to do.

But in this suit they failed to show that the rice was sound, and the defendants were not allowed to show that it was unsound. ■ This omission was a failure to make out their case, and consequently they should not be permitted to recover on the contract.

The District Court was probably led into error on account of what is alleged to be a delivery of the whole amount sold, in the shape of a particular cargo, and doubtless construed it into the purchase of a special cargo; in which case the Court * would have been right in allowing the action to proceed on the contract, turning the defendants round to their action on the warranty, or allowing them in the same action to recoupe the damages under proper averments in the pleadings. But the contract here declared on is not of that class.

It is simply for the sale and delivery of so much sound rice, without specifying any particular rice, or any particular cargo; and in the absence of any ambiguity on the face of the contract, parol ¡evidence was inadmissible for the purpose of varying its terms, or of altering the character of the liability which it created. This view renders it unnecessary to consider whether there was a delivery or not. If there was, it is then very certain, that although the plaintiffs may not be allowed to recover on the contract, they may recover on a quantum valebant. (See Poulson v. Lattimore, 17 E. C. L.

R.) The next question to be considered is, whether the action was rightfully brought in the name of the present plaintiffs. The contract was in writing, made and signed by their agents, without disclosing the principal, Although the cases cited are conflicting, the best authority and soundest reasoning, I think, is in favor of the position that, in such cases, the principal may bring the action. But in order to maintain it, he must show the agency, and the power of the agent to bind him, at the time of making the contract, else there would be no mutuality, and consequently no contract.

Nor do I conceive that it would be permitted to put the defendant in any worse condition on account of a change of parties, of which he had no notice, and to which he had not assented. His defenses against the agent with whom he dealt as principal, must be also available against the newly discovered principal. In such cases, it is true, the principal may be the sufferer, but the rule is familiar that, where one of two innocent parties must suffer, it must be he who trusted most, or he whose misplaced confidence enabled the wrong to be committed. Judgment reversed, and the cause remanded,