Hall v. Huntoon

The opinion of the court was delivered by Williams, Ch. J. The question, which has been urged on the [250] consideration of the court so learnedly and so ably by the counsel for the plaintiff, it appears to us does not arise in this case. The trial was by the court on the issue- formed. The evidence is detailed. If any questions of fact were determined by the county court, this finding is not to be questioned here. The contract, on which the plaintiff relies, was made by the defendant, as agent of Finney, with Barney, from whom the consideration passed, and to whom the promise was made. In the first place, it is a sufficient answer to the present action to say, that whatever promise was made by the defendant was made by him as the agent of Finney, and it is not found by the county court that the defendant either exceeded his authority, or concealed his agency; but the contrary is to be inferred from the judgment rendered; and the fact of his denying his agency on a particular occasion does not change his situation, when from the case itself it is stated that he was such agent. In the second place, the declaration is not calculated to raise the question presented in the argument. The two special counts in the declaration are upon a sale by the plaintiff to the defendant, and a promise by the defendant to the plaintiff. The evidence tended to show only a sale by Barney, a promise to him, and that the plaintiff had no interest whatever in the property sold, — having, as it is stated, previously sold and parted with all his interest, and received and retained the price and consideration for which he had sold the same. This variance is fatal to any recovery on either of the special counts. Nor could the plaintiff recover on the evidence on the general counts. We apprehend the rule is truly laid down by Judge Swift, in his digest, that, where “a promise is made to a third person for the benefit of the plaintiff, the declaration must state it to have been made according to the fact; as in the case of father and child ;— when a promise is made to the former for the latter, the declaration must state the promise to have been made to the father, though the child bring tthe action.” Swift’s Dig. 690. The promise, in the case before us, may not have been void on the ground of illegality, inasmuch as a sheriff may take an indemnity for a past neglect. Yet, as the plaintiff passed no consideration to the defendant, if he [251] can be considered as having paid money at the request of any one, it must have been at the request of Barney, and not at the request of the plaintiff. For these reasons we think, that, under any view of the law on the subject of the parties to a contract, who may maintain an action on the same, the present action could not be supported on the facts which were in evidence. Having this view of the present case, it would seem to be a work of supererogation to examine critically the question which has been so elaborately and ably argued. It is, however, due to the occasion to say, that we adhere to the rule which has been formerly expressed in the case of Pangborn v. Saxton, 11 Vt. 79, and in Crampton v. Ballard, 10 Vt. 251, — which latter case was again before the court at a subsequent term, — that the legal interest in a contract is in the person to whom the promise is made, and from whom the consideration passes; and consequently he is the person who must bring the action; and if there are any cases which seem to be at variance with this, they are to be considered as exceptions to the general rule; and a party, unless he bring himself strictly within the exception, must be governed by the general rule. The case of Dutton and wife v. Pool, reported in 2 Lev. 210, 1 Ventr. 317, T. Raym. 302, has been considered as forming an exception to this rule, and probably for that reason Twisden, J., limits the rule adopted in that case to agreements made by parents on behalf of their children. It has always appeared to me, however, that the circumstances of that case warranted the decision, without impugning the general rule but in a slight degree. The transaction, out of which the case arose, was but four years after the passing of the statute of distributions, previous to which the administrator was entitled to the personal estate, and the bonds taken front him to make distribution were adjudged void. It was usual at that time, and indeed the only way, to provide for children, except the eldest son and heir, by settlement. The ancestor, Sir Edw. Pool, was about to make such a provision and settlement for his daughter, by cutting down the timber trees on his estate. The heir promised, injcase he would forbear to cut down the trees, that he would pay the daughter ¿£1000. The ancestor desisted, the estate, with the timber, descended to the heir, who was the defendant, and the [252] daughter, with her husband, who married after the promise, brought the suit. It was resisted by the heir on the ground that the action should have been brought by the executors of the father; but the objection was overruled and the action sustained, after many arguments. It is no where stated who was the executor; and perhaps it might have been the defendant. It is apparent, that, unless the action could have been maintained as it was, the whole object of the contract would have been defeated. The money recovered would have gone into the mass of the estate, to be distributed, and the daughter would have been entitled to only a part of the provision intended for her equally with the defendant. That the court should have hesitated, before they came to that result, was to be expected, and is decisive that they considered the general rule not lightly to be departed from. It appears to me that the daughter, in that case, lost an interest in consequence of the promise of the defendant, and which she would have had, but for that promise, and that interest came to the defendant, and he had the benefit of it; and it did not require any very subtle reasoning, or a stretch of principle, to enable the plaintiff to .recover. The consideration did not pass from her, when she lost her settlement; and the defendant, who received the same, might have been considered as making the promise directly to her. In the case before us the contract was an entire contract, to wit, to pay fifteen dollars and indemnify, &e. Barney was therefore interested in the contract to the extent of the money to be paid. Barney did not stand in the situation of a parent, bound to provide for this plaintiff. And if relationship is to be taken into the account, in determining who has the legal, or even beneficial interest in a contract, this relationship cannot be extended beyond parent and child, or husband and wife. It surely cannot be contended that a contract for the benefit of remote relations, or friends, can be enforced by them, when the consideration does not proceed from them, and the person who advances the consideration is under no obligation to .provide for, or advance, that relation and friend. The plaintiff parted with nothing, and lost nothing, in consequence of the promise of the defendant, he having previously sold the horse to Bainey and received the pay therefor. He does not [253] therefore bring himself within any of the exceptions, which have been engrafted on the rule, that the person, from whom the consideration proceeds, and to whom the promise is made, can alone maintain an action thereon. In every view, which we have been enabled to take of the case, the plaintiff is not entitled to recover, in this action, of the defendant. The judgment of the county court is therefore affirmed.