36 Vt. 705 | Vt. | 1864
In this case it appears that the defendant and one Southwick entered into a contract on the first day of April, 1858, by which Southwick agreed to supply the defendant daily with milk for his public house for one year from that date, for which the defendant agreed to pay a stipulated price per quart payable monthly. Southwick and the defendant acted under that contract agreeably to its terms till August 25th, 1858, when Southwick sold out his business to the plaintiff, who was then informed of this contract, and who by agreement with Southwick was to furnish the defendant under the contract on Southwick’s account the remainder of that month, and did so. He also continued to supply the defendant till October 1, 1858. The plaintiff claims to recover in this action on book for thus supplying the defendant from September to October 1, 1858. The defendant supposed during the time this account accrued, that he was being supplied by Southwick under his contract, and
1. Upon the facts found by the auditor the defendant’s counsel is right in claiming that the plaintiff and defendant must be taken to have acted under the contract entered into between the defendant and Southwick, that is, so far as it relates to the question of the defendant’s obligation to pay the account in 'question. The defendant at least has a right to elect so to treat it. If the plaintiff v?ished to stand in any better condition than this, it was his duty to have seasonably informed the defendant of his purchase of Southwick. The defendant cannot be thus misled to his prejudice. The plaintiff then can have no greater rights than Southwick would have had, had he not sold to the plaintiff and have continued to furnish the defendant as the plaintiff did, and then refuse to supply him any longer.
2. The defendant insists that the action should have been upon the special contract, and that there can be no recovery in this form of action. It is doubtful whether the defendant is at liberty to raise this question here, as it does not appear that the question was raised before the auditor, or in the county court. But however this may be, the fact that the account accrued under a special contract, is no objection to a recovery in this form of action, where, as in this case, the plaintiff seeks to recover the compensation for what he has done under the contract. If the plaintiff can recover at all, he can recover in the action on book. It must also be regarded as settled that in such a contract as this
3. But it is insisted, on the part of the- defendant, that the action should have been in the name of Southwick, and'that the-suit in the name of this plaintiff cannot be maintained. It is tr.ue, as already stated, the defendant has a right to insist that, as the' original contract was made by him with Southwick,' and as he had no knowledge, and no reason to suppose, till after the account accrued, that he was dealing with any one but Southwick, he cannot be made accountable to any one else to his own prejudice. But on the other hand the account in question all accrued after the plaintiff purchased the business of Southwick, the whole consideration moved from the plaintiff, and no one but him hqs any interest in the demand, and that interest existed at the time the account accrued. In point of fact the plaintiff was dealing with the defendant on his own account, and not on account of Southwick. Although the defendant cannot be subjected to any greater liability by the'suit being brought in the name of a party with whom he did not know, and had no reason to suppose he was contracting, that is no reason why the party really in interest when the account accrued may not bring the suit in his own name, if by so doing he deprives the defendant of no right
Judgment reversed, and judgment for the plaintiff, for the smaller sum, reported by the auditor.