Town of Arlington v. Hinds

Skinner, Ch. J. delivered the opinion of the Court. The plaintiff’s right to recover is resisted on the ground that the town is not a party to the contract, and cannot maintain the action; and also, that the statute of limitations constitutes a bar. We learn from the records of this Court, that an action has been heretofore brought upon the nóte here given in evidence by Luther Stone, as Treasurer of the town of Arlington, in which judgment was rendered for the defendant, upon the principle that no right of action thereon accrued to him in his official character. It also appears by the records that after that decision, Luther Stone, in his private capacity, instituted a suit upon the same note, in which he failed on the ground that from the face of the note it appeared that he was not the party in interest. The counsel for the defendant now contends, that the last decision, which was in his favour, was incorrect, and not warranted by authority. If it were proper to question this decision in a case where the same point was presented, it cannot be necessary here; for it does not follow of course, that, because an action may be sustained by one, all others are precluded. There are many cases of principal and agent, bailor and bailee, &c. in which the right is in either. The question is, can the action be sustained by the present plaintiff? Whether he, for whose benefit a contract is made by another, shall be entitled to recover on it or not, is a question which has long been agitated in the Courts. In some of the cases, where it has been held the action cannot be maintained, the reason assigned is, that the promise is made to another; but in most of the cases it is, because he is a stranger to the consideration. On examining the cases it will be found to have been decided, that where the promise is made to him from whom the consideration moves, for the benefit of another, the action cannot be sustained by the latter. There are also authorities of great weight, that maintain the right of the 1'atter to sue upon such contract. Many of the authorities show, that an action can be maintained by the former 3 and some, that the action may be sustained by either. There are cases, in which it has been decided the former cannot sue. — Cases also are to be found, in which the promise is made direct to the latter, and still he is not [436] permitted to bring the action. The fair conclusion from all the cases is not, that the right to maintain the action, by him from whom the consideration moved, is not supported by the current of authority ; but the right to maintain the action by him, fc>r whose benefit the contract is made, the consideration moving from another, may be considered doubtful, especially where the promise is not made direct to him. The principle seems to be, that as a consideration is necessary to the validity of all simple contracts, it becomes material, in deciding to whom the right of action belongs, to inquire from whom the consideration proceeded. Str. 592. 11 Mod. 241. Cro. E. 380. Hard. 321. Keb. 44, 64, 122. Cowp. 437. As we view this case, the question whether the action shall be sustained by the person only from whom the consideration moves., or by the person for whose benefit the promise is made, is of no importance ; for, whichever way that question be decided, it will be equally favourable to the plaintiff’s right to recover — the consideration having proceeded from, and the promise made for the benefit of the Plaintiff.* It is said that the consideration here is out of sight, and that it cannot be inquired into. This position is hardly warranted by authority. We have no law subjecting notes to the rules of the law merchant. By statute in England, and in some of the United States, promissory notes are placed upon the footing of bills of exchange, which import a consideration. They are here considered as they were in England before the Statute of Ann, simple contracts, and'are subject to all the rules of the common law applicable to such contracts j ■ their consideration may be inquired into, though the burden of proof is on the defendant, that is, he must show the want of consideration if the note express value received.† To inquire from whom the consideration moved is not strictly to impeach it. In this Court, when an action was pending upon this very note, brought by Luther Stone, it was decided, that he was a stranger to the consideration, evidenced from the face of the note, pnd that he was not entitled to recover. This has been very properly considered, by the counsel for the plaintiff, as the case of a contract with an agent. To oppose this [437] 5t is said that the contract is a perfect one on the face of it, and cannot be enlarged or diminished; that it does not appear from the note, that the consideration moved from the town of Arlington; that the legal interest of specialties, bills of exchange and promissory notes, is in the person appearing on the face of them. The principle contended for as to deeds and merchantile instruments is just. That this note is not of that description has already been attempted to be shown. If the position were correct, that no written contract, which upon the face ol it is perfect, and in which nothing is expressed from which it may be inferred that any other than those whose names appear therein are interested, in other words , the name of the principal is concealed, can be enlarged, &c, it cannot be applied here; for no one can entertain a doubt, on reading this instrument, that Luther Stone has no interest in the contract, that he acted as agent for the town, and that the interest was in the town. The promise is to pay t: Luther Stone, Town Treasurer, or Ms successors in office.” It would be unnatural and strange indeed, that Luther Stone from his private effects should be making provision, in case of his death or removal from office, for his successor. The case then is one in which the principal is not concealed, or rather the agency is manifested; and in such case* the principle insisted on by the plaintiff’s counsel, that the agent cannot sue, is fairly drawn from the cases cited of Pigott v. Thompson, 3 Bos. & Pul. 147, Bowen v. Morris, 2 Taunt 374, and several others. Where a contract is made with an agent and the principal named, no one ever doubted the right of the latter to maintain the action. But it is said, that although it does appear that Luther Stone was not personally Interested, but was acting as agent, yet it does not appear from the note who was his principal, that is, of what particular town he was Treasurer j and that this cannot be supplied by parol testimony. Assuming then that Luther Stone was agent — that the interest in the contract is the interest of his principal, and for which he might sue if named, the correct reading of the note is this: í{ I Adin Hinds, in the town of Arlington, this 27th day of April, 1808, promise for value received to pay the town eighty-four dollars twenty-seven cents.” The fair and legal inference must be, that the town named in the instrument as the place where the contract is made, is the town to whom the premise is [438] made. But, if this is uncertain, the ambiguity, we consider, may be explained by testimony aliunde. The defendant further relies upon the statute of limitations. The statute provides, that actions upon promissory notes attested by one or more witnesses, shall be commenced within fourteen years, &c. on notes unattesled within six years. It is true, this note was executed before the passing of the act, authorizing citizens of towns to testify in cases in which the town may be interested ; and is attested by J. Austin, who then resided in Arlington. But, as there is no proof that he was a rated inhabitant, or had any interest, unless it arose from bare residence, the question as to the effect of the attestation of an interested witness does not require examination. Judgment must therefore be for the plaintiff. Footnotes [*] See the case Whitelaw Treasurer v. Cahoon. — ante 295. [†] See the case Brooks v. Page. — ante 310, 344.