Bort v. Snell

Hardin, P. J.: Defendant executed the paper which recites three considerations. Two of them were passed; the third one was recited, viz.: “ And in consideration of the said committee taking such other steps as may be necessary to render the decision of the Court of Appeals in said ease of benefit to the said town to enable said committee, if necessary, to take further legal proceedings.” Other steps were taken. Plaintiffs performed services in reliance upon the subscription of the defendant. The considerations named were adequate to uphold the subscription. (Presbyterian Society v. Beach, 74 N. Y., 72.) Second. The words do “ agree mutually,” when construed in the light of the surrounding circumstances leading up to the subscription, evidently relate to the agreement between the several subscribers among themselves and to themselves. They say in effect, we among ourselves and with each other mutually do promise each other that we respectively will pay the amount, etc. So far as the promise is to pay to the plaintiffs it is not a' joint one, but each subscriber respectively promises to pay to the committee, to wit, the plaintiffs. The action was properly brought against one subscriber upon his parol promise to pay the amount [392] set opposite his name respectively. Defendant’s promise was separate and complete, independent of every other one’s promise, in so far as it was with, for and to the plaintiffs or beneficial to them. Can the action be maintained by the plaintiffs ? In answering this question we must first consider the nature and object of the agreement the defendant entered into. It was to induce further action and service upon the part of the plaintiffs. It was to indemnify or compensate them for such further action and service. True, in form, it was to pay to a treasurer named, or to be named, who apparently was made the receptacle or custodian for and in behalf of the plaintiffs. In Piggott v. Thompson (3 Bos. & Pull., 147) the commissioners were appointed by the act of parliament to drain certain “fell lands.” They let the tolls to the defendants for three years, who had hired for so much per annum, “ to be paid to the treasurer of the commissioners at his house in Ely.” But defendant paid part of the tolls to the commissioners, who brought an action to recover the balance. It was held that the action would lie. Heath, J., said : It appeal’s to me that the appointment to pay the treasurer “ was meant for the benefit of the commissioners, and they alone can sustain the action.” This case was followed in Buckbee v. Brown (21 Wend., 110), where it was said remedies must be pursued in the name of the party in interest, and not in the name of the agent who made the contract or whose duty it is to make the collection of moneys accruing under such contract. If we turn to section 449 of the Code of Civil Procedure, we find a statutory declaration that “ every action must be prosecuted in the name of the real party in interest.” The rule is general, but then there are exceptions provided for in the same section, such as cases when the action may be prosecuted by an executor or administrator, a trustee of an express trust, etc. The provision is brought forward from the old Code (§§ 111, 113). In Considerant v. Brisbame (22 N. Y., 392) the general rule is considered and the force of the language applying to trustees of an express trust. In that case it was held that an agent of a foreign corporation named in the subscription note might maintain an action. The legislation, was regarded as enabling. A similar view of the legislation was taken by the Court of Appeals in Hubbell v. Medbury (53 N. Y., 102), where Folger, J., says, in speaking of section [393] 113 of the Code of Procedure, viz.: “That is permissive. The trustee of an express trust may by it sue without joining the beneficiaries. It does not forbid an action by them or by him with them.” A like construction was given to sections 111 and 113 of the Code in Cridler v. Curry (66 Barb., 336). Having made a promise to the plaintiffs for their benefit and protection, the duty to or obligation of the defendant to the plaintiffs remains until extinguished by satisfaction or dischaged by a release. If the plaintiffs had executed to the defendants a release and discharge of his promise, would not the right of recovery have been gone ? Could the treasurer referred to in the agreement still have maintained an action on the defendant’s promise % We think not, and we think a payment to the plaintiffs voluntarily, or by satisfying the judgment before us effectually bars a recovery by all other persons upon the defendant’s liability. We are referred by the appellant to Cross and others Trustees v. Jackson (5 Hill, 478) to sustain his position, that the action might have been or should have been brought in the name of the treasurer. In that case there was a direct promise to pay “such trustees the amount of their subscriptions.” That was held sufficient to give a right of action to the trustees of the ferry association. We find nothing in the case conflicting with the views we have expressed. By the terms of the defendant’s promise he was to pay “ whenever the money collected in 1872 and 1873, then in the hands of the collector, was paid over ” to the credit of said town of Orleans. The proof shows that the town received the credit and benefit of the whole money. When it applied $1,000 in payment of its indebtedness it had the beneficial “credit.” It obtained the valuable advantage which the defendant made the condition precedent to his obligation to pay the plaintiffs becoming effectual and mature. (Smith v. Pettee, 70 N. Y., 13; Gray v. Gannon, 4 Hill, 77.) If the views we have expressed are correct, they lead to an affirmance. We are under a legislative requirement to “render judgment according to the justice of the case, without regard to the technical errors or defects which do not effect the merits.” (Code of Civ. Pro., § 3063; Bort v. Smith, 5 Barb., 283; Wells v. Cone, 55 id., 585.) According to our views the plaintiffs were entitled to recover [394] irrespective of any facts disclosed in parol evidence as to what was said at the time the defendant executed the promise contained in the subscription paper. Upon the merits we believe the judgment given by the justice to be right. Judgment of the County Court of Jefferson county affirming a justice’s judgment is affirmed, with costs. Folleto and Kennedy, JJ., concurred. Judgment of the County Court of Jefferson county affirming the justice’s judgment affirmed, with costs.