Edwards v. Golding

| Vt. | Dec 15, 1847

The opinion of the court was delivered by

Bennett, J.

Several questions have been raised in argument. It is claimed by the defendants’ counsel, that the action should have been brought in the name of Mills; that is, that the action cannot be maintained in the name of Edwards. It may be remarked, that the inquiry .is not, whether the action might have been maintained in the name of Mills, but whether the present plaintiff can have a right of action. It is said in argument, that, as the bill of sale states that the defendants bought the iron of Mills, it is conclusive upon the plaintiff; and that it cannot be shown by parol, that he was acting in the character of agent.

It is not to be questioned, that parol contemporaneous evidence is inadmissible to contradict, or vary, the terms of a valid written contract. In this case, however, the sale of the iron was, as the auditor finds, by a parol contract, made between Mills and the defendants some time prior to the delivery of the iron, when the bill of sale was executed by Edwards in behalf of Mills and the note taken ; and it may well be questioned, whether the rule excluding pa-rol evidence should extend to a case, where the original contract was verbal and entire, and subsequently a part of it, only, is reduced to writing. But, be this as it may, we do not think that it impugns any rule of law, to allow it to be shown, by parol, that Mills, in the sale, was but the agent of the plaintiff. It is consistent with the bill of sale, that the defendants bought the iron of Mills, either as agent, or principal. It does not profess to state in which capacity he was acting; and, without any violence to language, an agent might adopt the phraseology in this bill of sale.

In Dodge v. Billings, 2 D. Ch. 26, where the defendant had given a written contract to account for a certain Government bill of exchange, received of the plaintiff, on notes he held against him, it was held competent for the defendant to show by parol, that he was to account for the Government bill on notes then in his hands against the plaintiff in favor of a third person, and which he held as agent. In Shemble et al. v. Atkins et al., 7 Taunt. 260, a sale note was given to the plaintiffs, who were brokers in London, describing the sugars as sold to them; and a recovery was had in that case for the sale price, upon the ground, that the defendants had authorized the plaintiffs to make the contract of purchase in their own names, (brokers in the city of London being restrained from buying on their own account.) If the sale note had been deemed conclusive, no recovery could have been had. So in Wilson v. Start, 7 Taunt. 295, it is held, that the statute of frauds does not exclude parol evidence, that, in a written contract for the sale of goods, one of the parties was acting as agent for a third person, though the writing might purport, that he was acting for himself. Pahk, J., says, “It is the constant practice to show, by parol, whether a contracting party is agent, ox principal.

It being, then, established, that the iron sold was the property of the plaintiff and that Mills was acting as his agent, the plaintiff may have the action, though Mills did not at the time disclose his agency, and the defendants supposed the property belonged to Mills. Paterson et al. v. Gandasequi, 15 East 62. Story on Agency 509, sec. 401. Lapham v. Green, 9 Vt. 407" court="Vt." date_filed="1837-01-15" href="https://app.midpage.ai/document/lapham-v-green-6571966?utm_source=webapp" opinion_id="6571966">9 Vt. 407. The fact that-Edwards executed the bill of sale in the name of Mills cannot estop him from having the action in his own name, or in any way alter the legal effect of the transaction ; neither does the fact, that Mills was to .have, as a commission for the sale, all above seventy five cents on a 'hundred pounds.

In regard to the admission of parol evidence, to show, that, by the terms of the original contract, the weight of the iron was not to be gross weight, we have no doubt. The bill of sale does not state, in terms, whether the iron was sold by gross, or net, weight; and it is only by computation on the amount specified in the first item in the bill, that we can learn, that the sale was by the gross weight ; and it seems, that, at the time Edwards executed the bill of sale and made the computation, it was done upon the representation, by Peabody, that, by the terms of the contract between him and Mills, .the iron (except as to a small portion of it) was to be reckoned at gross weight, and upon Peabody’s agreement, that, if it was not right to so compute it, it should he made right. To hold that Edwards is bound by the computation so made would be great injustice. Most clearly he should be allowed to show, whether “ it was right,” or, in other words, according to the original contract, as made by Mills. This was the very ground, upon which Edwards consented, for the time being, to reckon the iron at gross weight.

The only remaining question relates to the admissibility of Mills as a witness, after he had executed the release to Edwards. It is claimed, that, in no event, can Mills be made a witness; and we have been referred to the case of Jarvis v. Barker’s Adm’r, 3 Vt. 445" court="Vt." date_filed="1831-02-15" href="https://app.midpage.ai/document/jarvis-v-barkers-administrator-6571323?utm_source=webapp" opinion_id="6571323">3 Vt. 445. The exclusion of Spencer, as a witness in that case, seems to have been put upon the ground, that his interest had not been removed. Though it is true, the judge, in a closing remark in his opinion upon this part of the case, says, “ it savors too strongly of a case of a real plaintiff to a suit in another’s name selling out his interest, for the purpose of becoming a witness to a point not otherwise capable of proof.”

But suppose that the real plaintiff to a suit in the name of a third person cannot be made a witness, by selling out his interest on trial, the case at bar is distinguishable from the case of Jarvis v. Barker. It appeared in that case, that the note declared upon had been taken by Spencer for his own benefit, payable to the plaintiff of record, or his order, without his agency, and that the validity of the note itself depended upon the performance of certain conditions precedent by Spencer. In the case before us the consideration for the promise moved from Edwards, and the promise was, in contemplation of law, made to him and for his benefit. He was the man mainly in interest in the promise; whereas in the case of Jarvis v. Barker, Spencer was the only one in interest in the promise, when made. All the interest, that Mills ever had in this promise, was to the extent of his commission. Though Edwards had in fact received what belonged to him from the avails of the iron, yet this does not alter the case. Mills was but the agent of the plaintiff in the sale of the property, and the right of action accrued to the plaintiff; and this right of action the principal had the right to control, even against the will of the agent. Though the agent had an interest in the suit, yet he cannot be regarded as the real party. We see no reason, why Mills is not a witness upon his release of his interest. He has released to the plaintiff all his interest in the subject matter of the suit, and also in the costs.

It is now, however, said in argument, that the counsel employed by Mills would have a lien on the judgment, which Edwards might recover, for their costs, and in this way Mills would still have a beneficial interest in the suit. If the attorneys of Mills would have a lien on the judgment, which Edwards might recover, Mills would not, as his release is but a quit claim of such interest as he had in the suit, be liable to respond to Edwards the amount of the lien enforced by the counsel of Mills; and upon the authority of Hutchinson, Adm’r, v. Pettes, 18 Vt. 614" court="Vt." date_filed="1846-07-15" href="https://app.midpage.ai/document/hutchinson-v-pettes-6573500?utm_source=webapp" opinion_id="6573500">18 Vt. 614, he would still have an interest in the suit.

But no such question appears to have been raised before the auditor ; and it does not arise on this bill of exceptions. Though the suit, to the time of the audit, had been prosecuted at the expense of Mills, (he employing the counsel,) yet it is not found, that any thing was then due to them for fees, or advances, in the prosecution of the suit. We cannot assume an existing indebtedness, in order to exclude the witness. The interest of the witness must be made to appear affirmatively. The attorneys, for aught that appears, were paid by Mills, either in advance, or at the time of the rendition of the services. There is not enough shown, to establish a lien in favor of the attorneys; and without this, the release of Mills removed his interest.

Though the auditor does not find any special agreement as to the weight, yet in such case the statute provides, that the rule shall be net weight.

The judgment of the county court is affirmed.