Holden v. Durant

29 Vt. 184 | Vt. | 1857

The opinion of the court was delivered by

Isham, J.

We think the judgment of the county court in this case must be affirmed. The wagon for which the note in suit was given, was not pm-chased for the defendant, nor in his name. It is stated by the auditor that in making that purchase Lewis Durant did not profess to act as the agent of his father, but bought the wagon for himself, and on his own account; and that Mr. Atwood, the vendor, so understood it at the time of the sale and purchase. Lewis Durant, therefore, by that purchase, became the vendee of that property; the title to the wagon was in him, and not in the defendant. Under those circumstances Lewis Durant had no authority to sign the note in the name of his father. It was a fraudulent use of his name, and made with the knowledge and by the solicitation of Mr. Atwood himself. If Lewis Durant had professedly acted as the agent of his father in making that purchase, or if Mr. Atwood supposed he was selling the property to the defendant, the case would be different from what it now is. In such case the circumstances that the contract had never been dis-affirmed, that the property was used in the defendant’s family and occasionally by himself, and that Lewis Durant, in the management of his father’s business during his absence, had given other notes in the name of his father, which were afterwards paid by him, would be important considerations; Watkins v. Vince, 2 Starkie 368. But as the facts now appear, the case is not one of agency; for the property' was understandingly sold to Lewis Durant, and for which he proposed to give his own note, but at the request of Mr. Atwood, and to enable him to dispose of it, the defendant’s name was affixed to it. The execution of the note in that manner did not vest in the defendant any title or claim to the wagon, nor would he have had a claim to it if he had ratified the execution of the note, or paid the same to Mr. Atwood. The wagon would still have remained the property of Lewis Durant, and subject to his disposal. In this view of the case it is immaterial whether the wagon was at times used by the defendant or not; that circumstance would not give him a title to the wagon nor make a consideration for the note; and there is no pretense that by any subsequent assent the defendant has ever ratified that execution of the note by his son.

Judgment affirmed.