Hathaway v. Sabin

61 Vt. 608 | Vt. | 1889

The opinion of the court was delivered by

Boss, J.

The amendment granted by the County Court added neither a new party, nor a new course of action, and was within the power of the court to allow. Waterman v. Conn. & Pass. R. R. Co., 30 Vt. 614; Skinner v. Grout, 12 Vt. 456; Boyd v. Bartlett, 3 Vt. 14; Dane v. McClure, 39 Vt. 197; Levis v. Locke, 41 Vt. 11. It is not seriously contended by the defendant’s counsel that the amendment was not properly allowed but he contends that the amendment does not aid the plaintiff, inasmuch as he contends that the Hungarian Gypsy Quartette is the party of the first part to the contract, given in evidence by the plaintiff.

If this be so, the action of the County Court was correct. The plaintiff could not recover on a contract to which he is not and cannot become a legal party.' The contract is non-assignable. Whether the plaintiff, or the Hungarian Gypsy Quartette, is the party of the first part to the contract must be determined from the contract itself. It is in writing and cannot be added to nor varied by parol testimony. It is somewhat inartificially drawn. It describes the party of the first part as the Hedpath Lyceum Bureau, Boston agents for the Hungarian Gypsy Quartette. The clause, Boston agents for the Hungarian Gypsy Quartette, may indicate that the plaintiff, in the transaction, under his assumed name, was acting for the Hungarian Gypsy Quartette and binding that company and not himself, or it may have been used to- describe the plaintiff more definitely. If the plaintiff, acting under the name of the Hedpath Lyceum Bureau, had intended to bind the Hungarian Gypsy Quartette, and not himself, he would naturally have mentioned the Hungarian Gypsy Quartette, by the Hedpath Lyceum Bureau, Boston agents, as the party of the first part. Instead of so doing he mentions the Hedpath Lyceum Bureau as the party of the first part. The. next clause of the contract declares that the party of the first part agrees to furnish Hungarian Gypsy Quartette for an entertainment, etc. This is unnatural language if the Hungarian Gypsy Quartette is the party of the first part. If that company had been the first party to the contract, the contract naturally would have said that the party of the first part agrees to give an entertainment. The -clause “ to furnish Hungarian Gypsy Quart.” is without meaning and useless if the Hungarian Gypsy Quartette is held to be the party of the first part. We think that the fair construction of the language used in the first two sentences of the contract makes the plaintiff, under his assumed name of Redpath Lyceum Bureau, the party of the first part to the contract.

In no part of the contract do the Hungarian Gypsy Quartette appear to be contracting for themselves : On the other hand the plaintiff, under his assumed name, appears to be and we think did, •contract for the defendant to furnish this quartette for an entertainment. On this construction of the contract,in respect to the parties thereto, it was error for the County Court to rule that ihe action could not be maintained in the name of the plaintiff.

The judgment of the County Court is reversed and the cause tremanded.