59 Vt. 423 | Vt. | 1887
The opinion of the court was delivered by
We think the findings of the auditor should be construed as equivalent to the finding expressly of an original
The expression, “ would see that they had their pay,” implies a collateral promise; but if this form of expression was intended and understood as a promise to pay directly and not conditionally, it should be so treated. The substance and not the form should control. We think the facts and circumstances reported show that the promissee had the right to’ and did understand that the further labor and material to be furnished should become the debt directly and not collaterally against Burton and Sowles, and that Burton so intended.
The person’s name in the account on the books often has controlling influence in deciding the fact as to the person who is regarded as the original debtor, but it is not conclusive; and in this case, if the charges were not to Burton and Sowles as first made, which does not clearly appear, we think but little importance should be attached to it under the other facts reported.
The Statute of Frauds, therefore, is not available to the defendants.
In the case of Smith v. Burton and Sowles, ante, 408, we held that the contracts with MacDonald did not create a partnership between Burton and Sowles or make them the proprietors of the business ; and did not create an authority on the part of either to pledge the credit of the other, in the performance of their contract obligations to MacDonald. The contracts were severally signed by them, and in many respects point to a several obligation on the part of Burton and Sowles.
In the case at bar, unlike the other, there is nothing in the report to indicate any authority by Sowles to Burton, outside ■the contracts, to pledge the credit of Sowles to the plaintiffs. It does not appear in the report that Sowles knew of any dealings with the plaintiffs by either MacDonald or Burton. And there is nothing to show any course of dealing indicating any authority for each to act for the other.
Therefore the judgment for the plaintiffs as against Burton is affirmed, but as against Sowles is reversed, with costs.