48 Vt. 497 | Vt. | 1875
The opinion of the court was delivered by
According to the bill of exceptions, the plaintiff’s evidence tended to show that Mrs. Blood, wife of the defendant, applied to the plaintiff to have him “ make for her” the school omnibus in question, and that after negotiations “ it was finally agreed between them that the plaintiff should make such a carriage for her,” at the agreed price ; and this statement of the making of the contract is not in any way varied or affected by anything else that is stated in the exceptions. And according to this statement, he and she, and not he and the defendant, were the contracting parties, and he must have relied upon her undertaking to perform her part as the consideration for his performance of his. Having given credit to her notwithstanding her relation to the defendant, he could not afterwards transfer the contract from her to the defendant, without at least the defendant’s consent, so as to make her undertaking a liability of the defendant. Carter v. Howard, 39 Vt. 106. As before stated, there is nothing that appears in the case that in effect varies this result. She did not in fact act as the agent of the defendant in this business; for the undisputed evidence tended to show that she owned the house in which she and her children lived, and the horses and carriages she kept, bought the supplies on her own account and in her own name, and that he had nothing to do with the care or management of the family. Therefore, this business with the plaintiff was her own and not the defendant’s ; and as he was not in fact the principal, he could not, correctly, be said to
For these reasons, the judgment must be reversed, and so far as is now apparent, there is no occasion to make any decision upon the other question in the case.
Judgment reversed, and cause remanded.