University of Vermont v. Baxter's estate

The opinion of the court was delivered by Prout, J. The plaintiffs, in the two first counts of their declaration, declare upon promissory notes made payable to the' University of Vermont; in the third, upon an indebtedness and promise to that corporation, and in the fourth count, upon a subscription payable to the same party. The action is in the name of the University of Vermont and State Agricultural College, the University of Vermont having been united to the plaintiff' institution. To the declaration the defendant has pleaded four special pleas, to which the plaintiffs have demurred generally and specially, assigning for cause of demurrer that they amount to the general issue-, and which, if objectionable for that cause, is ill pleading. The defence set up in the special pleas is, that the notes and subscription were proposed gratuities on the part of Mr. Baxter, and were given without consideration. Other ma.t [103] ters of fact are alleged and set forth in them, as prior indebtedness and inability on the part of Baxter to pay his debts, which we deem unimportant in determining their nature and effect. A special plea is only admissible for the purpose of bringing forward new matter which does not deny or put in issue the truth of the declaration. This is the general rule, and the reason is, to prevent unnecessary prolixity, and a reference to the court, “ instead of the jury, of matters of fact — matter which goes in denial of the declaration and not in avoidance of it.” Gould’s Pl., 346, § 79. The cases of Potter v. Stanley, 1 D. Chip., 243, and Hatch v. Hyde, 14 Vt., 25, are direct authorities upon the point. In the latter case, it is said, a plea denying the consideration amounts to the general issue, and is bad on special demurrer. The pleas in this case are bad for the same reason. The demurrer, however, raises the question as to the sufficiency of the declaration. The several counts contained in it, as already remarked, allege an indebtedness and promise to the University of Vermont, which is a different party than the plaintiffs, and it is claimed that under no allegation of facts can the plaintiffs recover in their name. The legislature of this state, in October, 1864, (Session Laws, 1864, p. 101,) passed an act incorporating the Vermont Agricultural College. The institution, when organized according to the provisions of its charter, possessed all the powers of an independent corporate body. Subsequently, by virtue of the provisions of an act approved November 9, 1865, (Session Laws, 1865, p. 96,) they became united with the University of Vermont, which provides that when the several institutions shall have become united as therein provided, they shall be a body corporate, of the name of the plaintiffs, for the purpose of carrying out the objects contemplated by their respective charters. Sections four and twelve of this act contain all that is material relating to the property and assets belonging to either institution. By the provisions of those sections, the trustees of the united colleges are given full authority to use, control, sell or dispose of all the real and personal property of the University of Vermont for the benefit of the new institution, in case they became united as provided, and are required to assume and pay all the debts and [104] perform all the duties and trusts which the several institutions were subject to at the time they became merged in said new institution. The new institution may also, by the provisions of the act, acquire other property by gift, grant or otherwise, from other sources, to enable them to attain the object intended, and which the legislature had in view, by uniting, closely and completely, the two colleges, and by transferring the property and means of both to the plaintiffs. This transfer of the property is, it is to be noticed, by operation of express law, except as dependent upon an organization under the act, and certain votes as therein provided. If both institutions voted to accept the act, organized, and also voted to surrender and relinquish to the plaintiffs, the new corporation thereby created, “ all the property belonging to them, real and personal, and all the profits, rents and income therefrom,” as provided, and the two institutions were thus brought together and united, the property, in its most extensive sense, of the University, passed to 'and vested in the plaintiffs. This is the plain effect of the act — its policy and spirit, as indicated by its language and object. In relation to the real property, no question is made as to the plaintiffs’ right of action, which is in terms given them, and they may maintain it in their own name. As to choses in action, claims of the character of those in controversy, if depending wholly upon the language' of the act, it may be more doubtful. However that may be, in our view, the question does not depend upon a construction of its language merely, but rather upon the language and the character and nature of the transfer: whether it is the act of the law; which, although silent as to the right-to sue, not only transfers, but substitutes the plaintiffs for the original party to these contract claims, and which are the subject of the action. In the case of the King v. Twine et al., 2 Cro. Jac., 179, it is held that the king’s grant or assignment of a chose in action is “ good enough,” and that the grantee or assignee may have the benefit of it, by an action in his own name.- This is not so as to a common person, as said in that case, and as has been since repeatedly held; but a transfer or assignment of a claim 'or cause of action, whether negotiable or not, made by the crown, takes effect, it is said in Lambert v. Taylor et al., 4 B. & C., 138, (10 [105] E. C. L., 515,) “ from a general rule of law; not from the custom of merchants, or any special custom,” and passes the right to sue. So of an act of the legislature, transferring a cause of action, as is not unfrequent under the operation of bankrupt and insolvent laws, which pass and vest the legal title and interest to assignees, as well as the right of action; and they may maintain it in their name. 2 Bl. Com., 442, 485. We the more readily come to this conclusion in this case, as the defendant can not be prejudiced, all other defenses being saved to him by the terms of the act referred to. Aid where he can not be prejudiced upon common principle, as remarked by the court in Maynard et al. v. Briggs, 26 Vt., 94, “the suit may always be brought either in the name of the parties with whom the contract is made, or in the name of those legally interested, at the election of the plaintiff.” But an organization of the plaintiffs is material, as well as a vote to accept the act and to surrender and relinquish the property of the University to the plaintiffs, and these facts should be averred in the declaration, upon the same principle that it is necessary to allege the purchase and delivery of a non-negotiable note, or other debt, and an express promise to pay it, to enable the purchaser or assignee in that case to maintain an action in his name to recover it. It is not enough that the plaintiffs are the owners of these claims, that they are their property, and that as creditors they presented them to the commissioners on Mr.' Baxter’s estate for allowance. That would lead to confusion and possibly embarrassment in respect to offsets, for which there is no necessity, as the plaintiffs’ legal title and interest may be set forth by averment and proved on trial, or the claim may be prosecuted in the name of the original party by the real owner, as is often done on well understood principles. The declaration is therefore bad, but as the plaintiffs desire, the judgment of the county court is pro forma reversed, with liberty to amend on the usual terms,