Balch v. Aldrich

The opinion of the court was delivered by Powers, J. This action is brought by Foster Bros, in the name of the plaintiff to recover an unpaid balance upon an order in writing, reading as follows : “ Please to pay Daniel Balch fifty-eight dollars, and charge the same to us. Aldrich & Jones.” It appeared that the plaintiff, Balch, procured the order from -the defendants for the purpose of passing it to Foster Bros, in satisfaction of his (Balch’s) indebtedness to them; and.that the defendants were informed of this purpose, and understood that in fact the order was to be addressed to Foster Bros. Balch delivered the order to Foster Bros., and they gave Balch credit for the same as a payment upon their indebtedness against him. The transaction then was a payment by Foster Bros, to Balch of so much money upon the credit of the defendants; and the only action that is available to Foster Bros, is the action of assumpsit for money paid. The order shows the-request to Foster Bros, to pay, and to charge the same to the defendants. Upon payment as requested a perfect right of action was established in Foster Bros, to recover the amount of defendants as money paid. The order merely [70] serves the purpose of evidence; it is not an instrument that can be sued upon as such; and Raich is in no privity of contract with the defendants. Balch then cannot sue on the contract; Foster Bros, alone could maintain the suit. Accordingly the pro forma judgment of the County Court is reversed, and judgment rendered for the defendants.