89 Vt. 542 | Vt. | 1915
This case comes up on demurrer to the plaintiff’s declaration. The demurrer was overruled, exceptions taken and an order'made passing the case to this Court before trial, all before the Practice Act took effect.
That act, as is suggested in argument, provides that it shall apply "to cases in Supreme Court in which exceptions have not been finally settled.” It does not appear from anything before us when the bill of exceptions was settled and signed, though it was not filed until a few days after the Practice Act took effect.
As we construe the act, we are not here prevented from passing upon the correctness of the trial court’s ruling under the law in force when the ruling was made. We treat the case- accordingly.
The declaration is in three counts. The first count sets out a joint and several promise of the defendants to pay the plaintiff a commission if he should be instrumental in a way or ways stated in bringing about a sale of lands or timber on lands owned by the defendant company with which the defendant Blandin was connected, and of which he was an agent and officer empowered by the company to sell the lands and the timber on the lands in question and to employ others and especially the plaintiff to sell and to assist in selling the same. The count sets out performance on the plaintiff’s part and a breach of the defendant’s promise.
The first ground of the demurrer is that the count is argumentative, on the ground that Blandin’s authority is stated as a legal conclusion from his being an officer and agent of the company. But we think the statement complained of is a statement
The second ground of the demurrer is that the count contains inconsistent allegations in that it states that the company owned the lands and the timber and that the company and Blandin, its agent, made a joint and several promise, a thing asserted to be impossible. But it is not impossible, and the claim of inconsistency is not well grounded.
An agent may, if he will, bind himself in his individual capacity jointly and severally with his principal. Whether or not the agent Blandin did here so bind himself, must be determined on trial, where the defendants will have the benefit of whatever presumptions obtain. The allegations in the count are sufficient.
It is further claimed that the count shows no consideration for Blandin’s promise. But it does, for it shows a consideration moving from! the plaintiff in reliance upon the joint and several undertaking of the company and Blandin.
It is further claimed that Blandin’s promise as set out is to answer for the debt of another and should be alleged to have been in writing. But the count sets out Blandin as an original promisor, and it is immaterial that it is not alleged that the consideration or any part of it, moved to Blandin. It is enough that a consideration is alleged to have moved from the plaintiff by virtue of the promise of Blandin — the joint and several promise of Blandin and the company. We have no occasion to consider and do not consider the proposition that good pleading requires that a promise to answer for the debt of another should be alleged to have been in writing when the nature of the promise appears on the face of the declaration.
The declaration contains three counts, though the third count lacks the usual introductory words “in a further plea of the case.” But since it is in fact a further plea of the case, the omission is not material to any question here.
The demurrant mistook the last two counts for one, and demurred to such supposed count for reasons that are dissipated when the mistake is noticed.
Judgment affirmed and cause' remcmded for trial on the\ merits.
