10 Vt. 251 | Vt. | 1838
The opinion of the Court was delivered by
■In this case, the defendant acknowledges the receipt of §300,00, which he promises to pay over to the indorsers Of the note to Dyer, i. e. to plaintiff, and Salisbury as it is agreed, and in addition to this, he promises to indemnify, and save them harmless from all loss, cost or damage in the premises.
There is no controversy about the three hundred dollars. That has been paid according to the contract. But it is contended, that so far as the contract was special, i. e. extended beyond the simple payment of the money, no action could be sustained in the name of the plaintiff, and the court are of. that opinion.
The three hundred dolíais, Which seems to form the only consideration of the intestate’s promise, was received of Vaughan & Son. They were the principals in the contract to Dyer. That was a liquidated, and not an uncertain or contested claim, and there is no pretence that the intestate assumed the debt of Vaughan & Son to Dyer absolutely. He Only agreed to indemnify Salisbury and plaintiff, and, as a natural consequence perhaps, agreed to pay whatever they should be compelled to pay.
But there is nothing in the case, showing that plaintiff and Salisbury agreed to look to the intestate for their indemnity or that they were made acquainted with the intestate’s contract. It was a contract in some sense, for their benefit, but one in which they had n'ot, by any means, the only, or perhaps the principal interest. It was made without their privity, and not in their names, but in the name of another, and one who had the principal, and they only a secondary interest. Under these circumstances, we think that the suit cannot be sustained in the name of this plaintiff.
He cannot claim that Vaughan & Son acted as his agents in making the contract, for they were themselves ultimately interested in the contract. And no case can be found in the books, where the consideration moves from a person principally interested in a contract, and the contract is made with such person, that one collaterally interested can sue in his
Those cases in which a party, with whom the contract was not made, has been permitted to sustain an action upon it, are referable to the heads of “ dormant partners,” “ agents known or secret,” and where the consideration moves from the party, and he is solely interested in the fulfilment of the contract. 13 Petersdorff, 129, et seq.
The objection, that the suit should have been in the name of plaintiff and Salisbury, has not labored with the court, liad the contract been made exclusively for their indemnity, we think it should be understood as made to them severally, unless they were jointly liable to the payment of the money, in the same relation, and paid the money out of joint funds, which is not pretended to be the case here. The plaintiff and Salisbury were liable, one by personal contract, the other for official neglect, and no money has been paid by them, out of any joint property. We think, in accordance with all the decided cases on this subject, each may bring a suit for the amount paid by him, against the persons liable to them or either of them. 1 Saunders’ Reports, 154, and notes.
How far the receipt of money, with an absolute promise to pay it over, without any time named, which in construction of law signifies immediately, and makes the defendant liable for interest, the whole time he retains it, may form the consideration for a promise beyond the refunding of
Judgment reversed.
