Sampson v. Swift , 11 Vt. 315 ( 1839 )

The opinion of the court was delivered by

Redfield, J.

Three questions are submitted for the consideration of the court.

Will any action lie upon the defendant’s promise ? We are clear that there will. It is said there is no sufficient consideration for the contract. A legal consideration is defined to be some act, which is a benefit to the person contracting, or an injury, or the foregoing of some advantage, by the other party to the contract. There can be but little doubt, that both these ingredients enter into the consideration of the present contract. It is further contended that this promise of the solicitor is within the statute of frauds, being for the debt of another. The imposing of terms by courts, under their rules of practice, creates no debt upon the party amerced, unless he elects to be bound by a special promise, and the other party is content to accept that in lieu of payment. No one, then, except the person promising, was ever bound by the contract. It could not, of course, be a promise for the debt of another.

The remaining objections seem to resolve themselves into the single question, whether the promise of the defendant to Mr. Roberts, under the circumstances, is to be considered a promise to the plaintiffs. It was well known that Roberts was acting merely on behalf of the plaintiffs, and that the terms were .imposed, and defendant’s promise made for their ultimate benefit. We think, then, it was competent for plaintiffs to bring a suit in their own name, upon the promise. It may be true that the general powers of solicitors will not extend to contracts of this character. But if the client sees fit to give such authority, or to adopt such acts of the solicitor, it is no concern of the defendant. If one contract with a known agent, the suit must be brought in the name of the principal. Gilmore v. Pope, 5 Mass. R. 491. If the principal be unknown at the time of the contract, the suit may be brought in the name of either the principal or agent. Hilliker v. Loop, 5 Vt. R. 116, Mantington v. Vernon, 1 Petersdorff, 522. Skinner v. Stocks, 5 Com. Law R. 478.

Judgment is, therefore, affirmed.