Davenport v. North Eastern Mutual Life Ass'n

47 Vt. 528

• Court: Supreme Court of Vermont
• Decided: February 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

The questions in this case arise upon a demurrer to the plaintiff’s declaration. It is insisted first, that the plaintiff cannot maintain this suit as the administrator of Trombley, but that the suit should be brought in the name of the wife and children of Trombley. The general rule in actions on contracts is, that the suit should be brought by the party having the legal interest in the contract — the person to whom the promise and undertaking run. Hall v. Huntoon, 17 Vt. 244; Corey v. Powers, 18 Vt. 587. The averment in the declaration is, that the defendant “ undertook and then and there faithfully promised to pay to the wife and children,-or their legal representatives,” &c. As this declaration stands, the right of action is clearly in the wife and children. When the sufficiency of pleadings is challenged by demurrer, inferences are to be drawn against, rather than in favor of, the pleader ; and in this case, a promise to the intestate can, at least, only be inferred — it is not alleged. The case of Fugure v. Mutual Society of St. Joseph, 46 Vt. 362, did not turn upon a question of pleading. In that case, it was held that the plaintiff could not recover because there was nothing due him. An examination of that case will show that the declaration counted upon a promise, not to the plaintiff, but to the deceased husband. There is, obviously, no conflict between the doctrines of that case and the one at bar. The view we have taken of the question renders it unnecessary to consider the other questions raised.

Judgment reversed, declaration adjudged insufficient, and cause remanded, with leave to plaintiff to amend upon the usual terms.