Peck, J.
In determining this question whether the charge is correct we must take the facts, which the charge of the court requires the jury to find, in connection with the other facts which appeared in the case, as undisputed, and treat the whole as having been found by the jury. Hence there is no objection to the charge on the ground that it makes it unnecessary for the jury to find that Ives had authority to sign the names of the other selectmen to the order he gave Kelsey on the plaintiff for one hundred dollars, as the case shows as undisputed facts that all the selectmen concurred in the agreement by which Kelsey'was to have the subscriptions, that the contract was thereafter to be reduced to writing, and that Ives had a general authority to sign, and was in the habit of signing, the names of the other selectmen to papers to carry out transactions to which the others, as in this case, had assented. The charge on this point must be [446]*446understood, therefore, as simply not requiring the jury to find in addition to this general authority any special, express or particular authority to sign this particular paper. We think in this sense it was correct as the giving of the order was only an appropriate mode of carrying out the agreement the selectmen had made, and in pursuance of their arrangement to have it reduced to writing.
By the terms of this agreement between the selectmen, Kelsey, and the plaintiff, (saying nothing for the present as to the authority of the selectmen to bind the town,) Kelsey was to build the road, the plaintiff was to pay Kelsey the one hundred dollars, and the town was to discontinue the old road across the plaintiff’s land, which, as the case shows, would benefit the^ plaintiff some three hundred dollars by relieving his farm of the incumbrance of the old road. The town put itself under an obligation to the plaintiff to relieve his farm of the old road, and to Kelsey to discontinue the old road in order to make the one hundred dollar subscription available as it was payable on condition the old road should be discontinued. Kelsey having built the new road and taken this one hundred dollar subscription on the faith of the agreement by the town to comply with the condition on which it was payable, had a right tu require the town to comply with this condition so as to make the subscription available, and, on the neglect of the town to do so, had a valid claim against the town for work and labor to the amount of the one hundred dollars. But it is insisted that the town was not bound to do this for the want of authority in the .selectmen to bind the town to this stipulation ; firstly, upon the ground that the old road having been laid by a committee of the county court the town had no right to discontinue it. It appears it was laid and opened by the selectmen in 1835, and also that it was covered by a survey of a road laid by a committee of the county court in 1836. But'supposing the selectmen or town had no right to discontinue it, they had a right to lay the new road and contract with Kelsey to build it., and as Kelsey took this subscription in payment on the faith of the agreement of the selectmen to comply with the condition on which it was payable, and it failed to [447]*447be available for want of authority in the selectmen to comply with the condition, it fails to be a payment, and leaves the town liable to pay the amount in some other way, especially as it appears from the case that the selectmen supposed when they made the contract that they had a right to discontinue it; and' it is to be presumed the plaintiff and Kelsey acfed under the same supposition, as there is nothing in the case showing that they knew that the road in question wras laid otherwise than by the selectmen. The want of, authority in the selectmen to discontinue the old road is not a defence which the town can set up against the claim on the part of Kelsey against the town for work and labor in constructing the new road, even if it is an excuse for not specifically performing the stipulation for discontinuing the old road, since the selectmen had authority to lay the new road 'and contract with Kelsey in behalf of the town to build it; and he having performed the labor, which went to the benefit of the town, the town, in default of the selectmen to procure the old road to be discontinued, whether such default is for want of authority to effect it, or for the wrongful neglect of the selectmen, was clearly liable to Kelsey to the amount of one hundred dollars, the jury having found that it was properly expended in building the road. In this condition of the parties when the road was completed by the town through their selectmen, the selectmen paid to Kelsey the fifty dollars the town was to pay and told him to get the one hundred dollars of the plaintiff, saying they would make it right with the plaintiff, and that he should have the old road^-having previously given to Kelsey an order on the plaintiff to the same effect This is equivalent to a request on the part of the town to the plaintiff to pay the debt the towm owed to - Kelsey, or, as the case states, “ fix it up with Kelsey,” under an agreement that if the plaintiff would do so the town would make it right with the plaintiff, or let him have the old road by the first of June. If the plaintiff and Kelsey have complied with this request of the selectmen on the faith of such promise, the town is liable to the plaintiff on such agreement, and on the principle already stated in reference to the liability of the town to Kelsey. The town were liable to Kelsey, as already stated, absolutely, either to discontinue the old road [448]*448so as to make the one hundred dollars subscription available or to pay that amount to Kelsey for work and labor. If the plaintiff and Kelsey have in pursuance of this request of the selectmen made this arrangement by which the plaintiff has paid or satisfied Kelsey’s claim against the town and relieved the town from that liability, the town cannot.resist the claim of the plaintiff on the promise of the selectmen based on that consideration. If the town can shield itself from liability on the promise for damages for not discontinuing the old road, they are still liable to the plaintiff for the amount of the consideration which the plaintiff parted with, as it inured to the benefit of the town by satisfying their liability to Kelsey. But has the plaintiff satisfied that liability? If the town is still liable to Kelsey, no right of action has accrued to the plaintiff by this arrangement. It was obviously the intention and the fair construction of the request of the selectmen to have Kelsey so fix up or arrange the matter as to relieve the town from their obligation to Kelsey, and substitute therefor a liability to the plaintiff, or, in other words, to substitute the plaintiff as their creditor in lieu of Kelsey. And it is equally clear that the negotiable note given by the plaintiff to Kelsey, and the surrendering of the order of the selectmen by Kelsey to the plaintiff was intended by Kelsey and the plaintiff, to have that effect notwithstanding the verbal agreement or understanding that the plaintiff should not call on Kelsey for payment, unless the plaintiff could collect the amount of the town. But for this verbal understanding it would be clear that the note must be regarded as a payment, and we think that with it it must be treated as a satisfaction of the liability of the town to Kelsey and if so, it is not material to the town that it was accompanied by this agreement; it was such as Kelsey was willing to accept in satisfaction, and we think no legal principle is violated by giving it the effect intended by the parties.
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Peck, J.
In determining this question whether the charge is correct we must take the facts, which the charge of the court requires the jury to find, in connection with the other facts which appeared in the case, as undisputed, and treat the whole as having been found by the jury. Hence there is no objection to the charge on the ground that it makes it unnecessary for the jury to find that Ives had authority to sign the names of the other selectmen to the order he gave Kelsey on the plaintiff for one hundred dollars, as the case shows as undisputed facts that all the selectmen concurred in the agreement by which Kelsey'was to have the subscriptions, that the contract was thereafter to be reduced to writing, and that Ives had a general authority to sign, and was in the habit of signing, the names of the other selectmen to papers to carry out transactions to which the others, as in this case, had assented. The charge on this point must be [446]*446understood, therefore, as simply not requiring the jury to find in addition to this general authority any special, express or particular authority to sign this particular paper. We think in this sense it was correct as the giving of the order was only an appropriate mode of carrying out the agreement the selectmen had made, and in pursuance of their arrangement to have it reduced to writing.
By the terms of this agreement between the selectmen, Kelsey, and the plaintiff, (saying nothing for the present as to the authority of the selectmen to bind the town,) Kelsey was to build the road, the plaintiff was to pay Kelsey the one hundred dollars, and the town was to discontinue the old road across the plaintiff’s land, which, as the case shows, would benefit the^ plaintiff some three hundred dollars by relieving his farm of the incumbrance of the old road. The town put itself under an obligation to the plaintiff to relieve his farm of the old road, and to Kelsey to discontinue the old road in order to make the one hundred dollar subscription available as it was payable on condition the old road should be discontinued. Kelsey having built the new road and taken this one hundred dollar subscription on the faith of the agreement by the town to comply with the condition on which it was payable, had a right tu require the town to comply with this condition so as to make the subscription available, and, on the neglect of the town to do so, had a valid claim against the town for work and labor to the amount of the one hundred dollars. But it is insisted that the town was not bound to do this for the want of authority in the .selectmen to bind the town to this stipulation ; firstly, upon the ground that the old road having been laid by a committee of the county court the town had no right to discontinue it. It appears it was laid and opened by the selectmen in 1835, and also that it was covered by a survey of a road laid by a committee of the county court in 1836. But'supposing the selectmen or town had no right to discontinue it, they had a right to lay the new road and contract with Kelsey to build it., and as Kelsey took this subscription in payment on the faith of the agreement of the selectmen to comply with the condition on which it was payable, and it failed to [447]*447be available for want of authority in the selectmen to comply with the condition, it fails to be a payment, and leaves the town liable to pay the amount in some other way, especially as it appears from the case that the selectmen supposed when they made the contract that they had a right to discontinue it; and' it is to be presumed the plaintiff and Kelsey acfed under the same supposition, as there is nothing in the case showing that they knew that the road in question wras laid otherwise than by the selectmen. The want of, authority in the selectmen to discontinue the old road is not a defence which the town can set up against the claim on the part of Kelsey against the town for work and labor in constructing the new road, even if it is an excuse for not specifically performing the stipulation for discontinuing the old road, since the selectmen had authority to lay the new road 'and contract with Kelsey in behalf of the town to build it; and he having performed the labor, which went to the benefit of the town, the town, in default of the selectmen to procure the old road to be discontinued, whether such default is for want of authority to effect it, or for the wrongful neglect of the selectmen, was clearly liable to Kelsey to the amount of one hundred dollars, the jury having found that it was properly expended in building the road. In this condition of the parties when the road was completed by the town through their selectmen, the selectmen paid to Kelsey the fifty dollars the town was to pay and told him to get the one hundred dollars of the plaintiff, saying they would make it right with the plaintiff, and that he should have the old road^-having previously given to Kelsey an order on the plaintiff to the same effect This is equivalent to a request on the part of the town to the plaintiff to pay the debt the towm owed to - Kelsey, or, as the case states, “ fix it up with Kelsey,” under an agreement that if the plaintiff would do so the town would make it right with the plaintiff, or let him have the old road by the first of June. If the plaintiff and Kelsey have complied with this request of the selectmen on the faith of such promise, the town is liable to the plaintiff on such agreement, and on the principle already stated in reference to the liability of the town to Kelsey. The town were liable to Kelsey, as already stated, absolutely, either to discontinue the old road [448]*448so as to make the one hundred dollars subscription available or to pay that amount to Kelsey for work and labor. If the plaintiff and Kelsey have in pursuance of this request of the selectmen made this arrangement by which the plaintiff has paid or satisfied Kelsey’s claim against the town and relieved the town from that liability, the town cannot.resist the claim of the plaintiff on the promise of the selectmen based on that consideration. If the town can shield itself from liability on the promise for damages for not discontinuing the old road, they are still liable to the plaintiff for the amount of the consideration which the plaintiff parted with, as it inured to the benefit of the town by satisfying their liability to Kelsey. But has the plaintiff satisfied that liability? If the town is still liable to Kelsey, no right of action has accrued to the plaintiff by this arrangement. It was obviously the intention and the fair construction of the request of the selectmen to have Kelsey so fix up or arrange the matter as to relieve the town from their obligation to Kelsey, and substitute therefor a liability to the plaintiff, or, in other words, to substitute the plaintiff as their creditor in lieu of Kelsey. And it is equally clear that the negotiable note given by the plaintiff to Kelsey, and the surrendering of the order of the selectmen by Kelsey to the plaintiff was intended by Kelsey and the plaintiff, to have that effect notwithstanding the verbal agreement or understanding that the plaintiff should not call on Kelsey for payment, unless the plaintiff could collect the amount of the town. But for this verbal understanding it would be clear that the note must be regarded as a payment, and we think that with it it must be treated as a satisfaction of the liability of the town to Kelsey and if so, it is not material to the town that it was accompanied by this agreement; it was such as Kelsey was willing to accept in satisfaction, and we think no legal principle is violated by giving it the effect intended by the parties. It is to be observed that in this view of the case no new indebtedness or liability is created. It merely substitutes the plaintiff for Kelsey as creditor of the town by consent and agreement of the three parties, and this it was competent for the parties to do, even if the note was not-’technically a payment, if by the arrangement the town ceased to be liable to [449]*449Kelsey, or’, as it is termed in some of the cases, it was an equitable assignment of the debt, and substitution of a-new creditor by agreement of all the parties.
We have already seen that Kelsey had a claim upon the town for work and labor if the town did not discontinue the road. The effect of this arrangement is in the nature of an assignment of this claim to the plaintiff by the consent and request of the town ; —a promise by a debtor to pay the debt to the assignee, enables such assignee to maintain a suit in his own name against the debtor. A promise made before the assignment has the same effect if the assignment is made on the faith of it. In other words the town agreed that if the plaintiff and Kelsey would “ fix it up ” they would make it right with the plaintiff. The plaintiff and Kelsey did ‘‘fix it up,” and the town having neglected to perform its promise, the instructions of the court below compel the town to do simply what it agreed to do, that is, “ to make it right with the plaintiff,” by paying him the $100, which it would have been compelled to pay Kelsey but for this arrangement and substitution made by agreement of all parties — even if they had no power to discontinue the old road.
As to the objection that the new road was not legally or regularly laid, we see no irregularity in the proceedings .left in the town clerk’s office, that the town can take advantage after having in fact laid the road and contracted with Kelsey to build it, and accepted the road after it was built, and opened and used it two years as a highway — nor was any question of this kind raised in the court below, which of itself is a sufficient answer to this objection.
An objection has been made, though not- much insisted on, that the contract to discontinue the old road is void as against public policy. We see no ground for this objection, but it is sufficient to say that the question, not having been raised in the county court, cannot be noticed here.
It is also objected that the plaintiff, if he can recover at all on the facts proved, cannot recover under this declaration. Whatever consideration this question might have merited, had it been made in the county court, not having been there raised it cannot be successfully raised here. When a question of this [450]*450character is raised in the county court, the objection may be generally obviated by amendment, and a party is not. at liberty to allow the case to go to the jury on the merits without objection to the declaration, and without raising the question whether the proof supports the declaration, and reserve his objections till the case comes into this court. The rule on this subject laid down by Royce, J., in Peck v. Thompson et al, 15 Vt. 643, is quite as favorable to the defendant as the present practice of the court will warrant. It is there said that no objection on the ground of variance not raised below, and which might have been obviated by amendment, is to be regarded, unless it is both apparent upon the record, and of such a character, that the judgment, if affirmed, will fail to protect the parties in reference to the matter actually litigated, when the merits have been tried. This was said in a case in which, as in this, the county court instructed the jury that if they found certain facts proved, the plaintiff was entitled to recover, and the defendant excepted to the charge. There is nothing in this' case to bring it within either of the exceptions contained in the rule above stated — for it is quite clear that justice has been done, and equally clear that the judgment in this case will be a full protection to the parties : the defendant cannot hereafter be liable to Kelsey, since by the very terms of the arrangement, between the plaintiffs and Kelsey relied on by the defendant’s counsel, the plaintiff was to have this remedy on the defendant in consideration of the note he gave, and the note was to become absolute, if the plaintiff recovered the amount of the defendant. Kelsey therefore will be estopped to claim as against the town that he has not got satisfaction by his own agreement: —his remedy will be solely against the plaintiff. This objection for this reason must be overruled, even if it would have availed the defendant, had it been raised in the county court, and this conclusion is the more just as the objection might have been obviated by an amendment, which was within the power of the county court to have allowed — if any amendment was necessary.
Judgment affirmed.