Benjamin Bruce vs. William Parsons, 12 Cush. 591

Shaw, C. J. The plaintiff not being a party to the charter-party, cannot sue on it, and his only action is assumpsit. It was not the main purpose of the clause introduced into the charter-party, in relation to commissions, to make a contract with the party entitled to commissions, but it was in the nature of a recital to determine who should pay the commissions, and to fix a rate of premium, as between the parties ; it is admissible in evidence only, like any admission to third parties, and no less so, because it is an admission made by a recital in a sealed contract.

It seems exceedingly clear that there was no joint contract. The plaintiff was the sole contracting party, and may sue alone, although bound to pay over to Gibbons & Barley. That does not make it a joint contract. When he obtained a bid of persons not within his own reach, through the New York brokers, he became liable to account to them if he obtained the commission, but that created no contract between the defendant and them. There is, in short, no privity between him and them. Schmaling v. Thomlinson, 6 Taunt. 147, is quite in point. The original contract here was between the plaintiff and the defendant.

The interest of the New York brokers was not in that contract, and, therefore, they are not brought within the technical rule requiring a joinder of parties. The plaintiff’s letter merely notifies to the defendant the claims of third persons on the writer, as a reason for asking immediate payment to him. There is no implication in that letter of any supposed claim in favor of the parties in New York against the defendant. New trial granted.