Curtis v. Belknap , 21 Vt. 433 ( 1849 )

By the Court.

TJ'ie objection, made in this case, to proving the execution of the Contract between the plaintiff and Thompson & Kent, is one, that has been many times held by this court to be ill founded. That contract was only incidentally in question here. The parties to this contract had never constituted the subscribing witness to that contract the exclusive witness of their contract. Nor could it be well \rgued, that the subscribing witness to any contract could ordinarily know more about the contract than the parties. It seems to involve an absurdity, that the parties should not know all about their own contract. But in Orleans county, ten years since, it was held, that, where the execution of a lease came incidentally in question in a suit between other parties than the lessor and lessee, its execution might be shown by the lessor, notwithstanding it had a subscribing witness. So, also, in Rutland county, where one, by indorsement, guaranteed the payment of a promissory note, which had a subscribing witness, it was held not necessary to call the subscribing witness,, the promissor himself being offered. So, also,. in Essex county, it was held, that the obligor of a bond, given by a land tax collector, might prove the bond, although it were witnessed.

The question, whether Benedict made the contract in part with Curtis, or with him and two others, was submitted to the jury, and they found, that he made it with Curtis aloné. In that state of the case the court held, that the suit might be brought in the name of Curtis, notwithstanding two others were at the time partners with him; and the county court also say, that the suit might have been maintained in the name of the three. This is all, no doubt, sound law, long and thoroughly settled.

The motion in arrest of judgment' cannot prevail. Whatever may be the rule in regard to supplying what is necessary in one count by reference to others, when the objection is taken by special demurrer, ifjjp. clearly good after verdict. The only inquiry, then, is-, whether, by any fair intendment, it can be ascertained, that enough was proved to sustain the verdict. To hold the contrary we must adopt a narrow and not very obvious rule of construction.

Judgment affirmed.