65 Ill. 543 | Ill. | 1872
delivered the opinion of the Court:
This was assumpsit, in the Livingston county court, in the name of Carpenter, for the use of Esty, against Larned, and judgment recovered. Larned appealed to this court. The only question made is that the action was improperly brought in Carpenter’s name.
It is an inflexible rule that an action at law upon contract must be brought in the name of the person in whom the legal interest is vested. Dix, for use, etc. v. The Mercantile Ins. Co. 22 Ill. 272.
The bill of exceptions purports to contain all the evidence, from which it appears that, in 1862, Carpenter, who was a non-resident, recovered a judgment for $146.25 against Lighty & Graybill, which was unpaid. Graybill was surety upon the note on which judgment was rendered, and Esty acted as Carpenter’s agent in recovering it. In 1865, Lighty sold some land, receiving therefor a note for $1000, and, being indebted to Larned in a sum between $400 and $500, turned over this note to him, out of the proceeds of which Larned was to receive his pay, and hold the balance for Lighty’s use. This balance, or part of it, remaining in Larned’s hands, and Graybill, being anxious to have the judgment satisfied, proposed to Esty to procure the application of $80 of it on the judgment, if Carpenter would accept it, and discharge the judgment, to which it appears that Lighty consented. Esty wrote Carpenter, who also consented, and sent an instrument in discharge of the judgment to Esty, and became very urgent for the money. Upon an express promise made by Earned, with Eighty’s consent and direction, to pay over to Esty the sum agreed upon out of the funds in his hands, Esty, from his own funds, advanced the §80 to Carpenter, and delivered to Lighty the discharge of the judgment. Earned afterwards refused to pay, on the ground that Eighty had become indebted to him for goods sold, and this action was brought to recover the §80. Esty, who was the party in interest, testified that he advanced the money to Carpenter on the strength of Larned’s promise to pay it back to him, and would not have advanced it upon any other consideration. Upon his own showing, therefore, the legal interest in the contract was in him, and not in Carpenter, who had received his pay, and discharged his judgment against Lighty & Graybill.
The action was improperly brought in Carjienter’s name, and the judgment must be reversed and the cause remanded.
Judgment reversed.
Mr. Justice Scott dissents.
