Lapham v. Green

9 Vt. 407

• Court: Supreme Court of Vermont
• Decided: January 15, 1837
• Status: Published

Opinion

The opinion of the court was delivered by

Redeield, J.

In the case of a dormant partner, which is quite analogous in principle to the present, it has long been settled, both in this state and in Westminster Hall, that he may join, or not, at the option of the plaintiff, and, in either case, the joinder or omission is no ground of abatement, or nonsuit, or writ of error. Skinner et al v. Stocks. 4 B. & A. 437. Hilliker v. Loop, 5 Vt. R. 116, and cases there cited by the Chief Justice.

We considerit as well settled, that, when business is transacted in the name of those not interested, the action may be brought in the name of those in interest, without joining those, in whose name the contract was made, and the suit may always be brought in the name of the contracting parties. Teed v. Elworthy, 14 East 210. Skinner v. Stocks, ubi sup. Glossop v. Coleman, et al. Starkie’s N. P. Cases, 25.

If an agent do not disclose his principal, the suit may be brought in the name of either. Young v. Hunter, 4 Taunton, 582.

But in each of the above classes of bases, if the suit be not brought in the name of the person ostensibly contracting, the case must be held liable to every defence which would obtain, if it were so brought, In this case, although the plaintiff at one time disclaimed all interest in this year’s business, yet it is now shown that it was really his. He was the party in interest and we see no reason why he should not recover.

Judgment of the county court affirmed.