Appeal from the Fifth Judicial District.

This was an action brought by the plaintiff against the defendants, on the 13th day of February, 1854, to recover the balance of $2,500 due on a written building contract under seal, entered into with them for the erection of the Placer Hotel in the City of Sonora, and for extra work and alterations, made in the plan of the work during the progress of the building. The complaint also contained two indebitatus assumpsit counts, and a count on a mechanic’s lien, filed against the said building.

The defendants demurred on several grounds: 1st, Because the plaintiff has not legal capacity to sue, because he is a subscriber to the articles of association of the Placer Hotel Joint Stock Company, and a co-partner and stockholder therein. 2d, Because there is a defect of parties' defendant, in this, that the contract sued-upon is a contract by the Directors of the Placer Hotel Company, on the part and in behalf of the stockholders thereof, consisting of the said defendants and others, including the plaintiff himself. 3d, Because it is not a personal contract of the defendants, but the contract of the Company, etc. 4th, Because the complaint does not state facts sufficient to constitute a cause of action. [328] * Tbe Court overruled tbe demurrer, whereupon tbe defendants answered, denying tbe various allegations of tbe complaint, and specially, tbat tbey did not contract individually, but only as tbe agents of tbe Company, etc. Tbe written contract was in tbe following form: “Articles of agreement made and entered into this 13th day of July, A. D. 1853, between Samuel A. Whiting, of the City of Sonora, party of tbe first part, and P. M. D. Collins, Wm. G\ Heslep, Frederick Salter -and .A. W. Luckett, Directors of tbe Placer Hotel Company, of tbe second part, witnessetb, etc.; and tbe said party of tbe first part agrees to construct, etc., said building, and deliver tbe same to the aforesaid Directors, or tbeir successors in office, on or before November 1st, 1853, etc.; and tbe said Directors, parties of tbe second part, and tbeir successors in office, in behalf of tbe stockholders of tbe Placer Hotel Company, hereby agree, on tbeir part, to pay,” etc.; and was signed by them, individually.

After tbe evidence was offered .on both sides, tbe Court charged tbe jury, “that if tbey believed, from tbe evidence, tbat tbe defendants, or tbeir agents, bad ordered alterations in tbe plan of tbe buildings, from tbe contract and specifications, and those alterations bad been executed by plaintiff, tbat defendants were liable; that if tbe jury believed tbat plaintiff bad not fulfilled bis contract, be would not be entitled to recover, unless tbe defendants bad prevented or delayed him by not fulfiling tbe contract on tbeir part; in which case, be would be equally entitled to recover; tbat if tbe jury believed tbat tbe sealed contract bad, in fact, been virtually abandoned by tbe parties, and tbe bouse built in another and different manner, tbe plaintiff could recover on a quantum meruit for tbe value of bis services, taking the contract price as tbe rule of damages, when tbe work, bad been done under it.”

Tbe jury retired and brought in a verdict for plaintiff, for $2,250.

Defendants’ counsel moved for a new trial, on these grounds:

1st. Excessive damages.

2d. Insufficiency of evidence to justify the verdict; and

3d. Misdirection of the jury, and error *in law, [329] in the admission of evidence to vary the written contract, etc.

The Court refused a new trial, whereupon the defendants excepted, and appealed from the judgment entered on the verdict, and the order refusing a new trial.

The Court erred in overruling the demurrer. The Court, erred in admitting parol evidence to show an alteration of the contract under seal, upon which suit was brought; the plaintiff cannot sue on an express contract under seal and introduce evidence to show that the contract was so varied by parol as to constitute a new cause of action, upon which a recovery was had; the contract was made between the plaintiff and the Directors of the Placer Hotel Company, in their official capacity, and not in their individual capacity; but the suit is brought directly against them, as individuals, and the judgment obtained against them as such. This is erroneous. The company alone should have been sued, and the plaintiff, being á partner, he should have proceeded by bill, praying a dissolution, and setting up his claim, and submitting to a pro rata loss, if any, growing out of the erection of the hotel.

A parol agreement to rescind a contract under seal is good, if it has been executed, and such agreement may be presumed, from the acts of the parties. (2 Cal. 584; 12 Wend. 334; 11 lb. 447 ; 4 Cow. 564; 2 Hill, 76; 4 Barb. 614.) The question was fully presented by the Court to the jury. (1 Cal. 206.) The case was fairly laid before the jury, and this Court will not disturb the verdict. (1 Cal. 39, 132, 180, 387.) Where one enters into a contract, or covenant, describing himself as agent of another, and covenants, as such agent, but signs and seals in his own name, he is personally liable. (7 Cow. 453; 13 Johns. 307; 8 Cow. 31; 2 Hall N. Y. 271; 18 Wend. 425; 3 Hill, 7; Story on Agency, 148, 160; 2 Smith’s Lead. Ca. 304, 307, 309; 1 Chitty’s Plead. 35.)