David Warden vs. Denison R. Burnham, 8 Vt. 390

The opinion of the court was delivered by Collamer, J. It is first insisted that the proof presented in this case was precisely in accordance with the first count in the declaration, and directly tended to sustain that count, and therefore it was error in the court to- instruct the jury, that the plaintiff ought not to have a verdict. It is true, in principle, that if the , defendant could have demurred, but has traversed, and the plaintiff proves his count, he should have a verdict even though judgment would be arrested.

He should not be allowed to recover his costs, and the experiment and expense of a trial on an issue on a count, which is so defective that judgment would be arrested. But in, this case the count was good and could not have been demurred to with success ; for the plaintiff alleged an express promise to pay him, personally and exclusively. Did the proof sustain or tend to sustain this allegation ? The order contained no promise whatever, and none to the plaintiff was shown. The order was a request that a certain amount should be discounted to Mrs. Doe, and a direction to charge the same amount to the defendant.

It was directed to the plaintiff, but he had no account against Mrs. Doe. An account however existed, belonging to the three Wardens. To this, the parties undoubtedly alluded, and on this account the discount was made; and most obviously the order was to be understood as a mere direction to trausfer that amount in the books of the Wardens, from Mrs. Doe to the defendant; and such is not only its obvious meaning, but such is its legal effect; according-to which legal effect, every contract must be declared on.

The law is well settled, that as relates to simple contracts the promise, to whoever made, innures to and is deemed a promise to whoever has the beneficial interest, which is the person from whom the consideration moves. The authorities on this subject are collected in Hammond and recognized at full length in the case of Arlington vs. Hinds, D. Chip. R. 431. Here the discount was made on Mrs. Doe’s account, which account belonged to the three Wardens. From them the consideration moved, and therefore to them the defendants contract innured, and it was in legal effect a promise to them, not to the plaintiff.

The cases which decide that dormant, secret partners need not be joined, have no bearing on this case. There were no dormant partners in this case. Both these parties had been co-partners with the others when the account' accrued and knew to whom it was transferred and of course could not be surprized with unexpected names. Judgment affirmed.