Cummings v. Blaisdell , 43 Vt. 382 ( 1871 )

The opinion of the court was delivered by

Peck, J.

In this action of general assumpsit, the plaintiff seeks to recover a balance due for labor in laying stone and brick at a certain price per yard and per thousand, as specified in a written contract with the defendant. The only question is whether the suit is properly brought in the name of the plaintiff alone, or whether Francis Pecor should have been joined as co-plaintiff. The contract was originally made between the plaintiff and Pecor of the one part, and the defendant of the other part. It was competent for the parties by parol to convert the contract into a several contract between the parties to this suit. The question is, whether what transpired after the execution of the contract has that effect, and operates to create a legal liability to the plaintiff alone, as to the unpaid balance due. The facts reported by the auditor would seem to justify the inference that when the arrangement was made by which Pecor left the work and ceased to have any interest in the contract, it was done by the consent of the defendant ; and that thereafter both these parties considered and treated the dealings as between the defendant and the plaintiff, the same as if Pecor had never been a party to the contract. If so, the case of Ambler v. Bradley, 6 Vt., 119, is an authority in support of this action. In that case it was held that if two joint creditors agree to divide the demand, (being a simple contract debt,) and agree that each shall receive from the debtor one half, and the debtor knowing the agreement and in pursuance of it pays one-half the debt to one of such joint creditors, it operates such a severance of the debt that the other creditor may maintain an action in his name alone for his half.

But whether the finding óf the auditor is sufficiently full and explicit to justify putting the case on this ground or not, there is another ground on which the action may be sustained. It appears that the labor was to be paid for as it progressed, at least 160 a week ; and that more work had been paid for than had been performed up to the time Pecor ceased to have any interest in the contract. According to the general rule in reference to the application of payments, all the work done prior to Pecor’s interest ceasing has been fully paid for. . This being so, the plaintiff was the only person interested in the compensation for the labor for which he seeks to recover in this action, at the time it was performed ; and this was known to the defendant. The plaintiff is still the only person in interest in whatever he may recover. As to this part of the work performed after Pecor’s interest was extinguished, Smith v. Foster, 36 Vt., 705, is in point to justify the non-joinder of Pecor as plaintiff. In that case Southwick contracted with the defendant to supply him, the defendant, with milk for a year. Before the expiration of the year Southwick sold out his property and business to Smith, and informed him of the contract with Poster, the defendant. Smith continued to cause the defendant to be supplied with milk in the same manner Southwick had. It was held that Smith could maintain an action in his own name against the defendant for milk, which he delivered within the year, although the defendant during all the time he was receiving the milk had no notice of the sale to Smith, but supposed he was receiving it of Southwick; the defendant being allowed any defense he could have interposed had the suit been brought in the name of Southwick. In actions upon simple contract, whether yerbal or written, the action may be brought in the name of the real party in interest and from whom the consideration moved. Hence the principal may sue in his own name upon a contract, written or verbal, made by his agent with a third person, although the agent contracts in his own name, and the other party has no knowledge of the agency. In actions on sealed instruments, promissory notes and bills of exchange, the rule is otherwise. Where, however, the action is in the name of one who is the real, and not the nominal party, the other party may interpose any defense which would be available against the nominal party, which accrues before the real party is disclosed to him. With this right secured to him, he is not prejudiced by the suit being in the name of the real party, instead of the nominal party. In the case at bar the interest of Pecor was extinguished, not only before the labor for which the plaintiff claims to recover was performed, but with the knowledge and acquiescence of the defendant. The consideration moved from the plaintiff alone, and he alone is interested in the sum to be recovered, and he is properly the sole plaintiff in the action.

Judgment affirmed.