Rutland & Burlington R. R. v. Cole

24 Vt. 33

• Court: Supreme Court of Vermont
• Decided: December 15, 1851
• Status: Published

Opinion

By the Court.

This is an action for a promissory note, made payable to Samuel Henshaw, Treasurer, &c. And upon the trial, the plaintiffs gave parol evidence to show that Henshaw was at the time treasurer of their company, and that the debt for which it was given was theirs. The only question in the case is, whether upon this proof, it is competent for the plaintiffs to maintain the action in their own name.

The very able argument addressed to us on behalf of defendant would abundantly satisfy us, if we had entertained doubts, that by the general commercial law 'of most countries, where the common law of England prevails, a promissory note, like the present, must be sued in the name of Henshaw. That is the result of the very learned opinion of Justice Prentiss, in the Circuit Court of the United States in the Bank of the U. S. v. Lyman et al., 20 Vt. R.

But in this State, since the case of Arlington v. Hinds, 1 D. Chip., a different rule has prevailed, and has been constantly practiced upon and repeatedly recognized, by the courts of the State, to such an extent as to be regarded as the settled law of the State. This being the case, we should not feel justified in changing the same, by a mere arbitrary determination of this court, unless some important end of justice was thereby to be subserved. And we cannot perceive how it can be of much importance, whether a promissory note, before indorsement, follows the rule of other simple contracts, as to the right of action, or is restrained to that which obtains in the case of specialties. For all practical purposes a promissory note, before it is negotiated, is a simple contract debt, and although it imparts a consideration, it is open to proof, that none in fact existed, which is not the case of a specialty. And if the defendant is allowed to defeat the recovezy, by showing that no consideration passed, we see no very serious objections to allowing the plaintiffs, in a case like the present, to show that they are the persons from whom the consideration moved, and to whom the note was in fact given.

From the case of Binney & Broadhead v. Plumley, 5 Vt. R. 500, 1 should infer that a suit might also be maintaizzed in the name of the person to whom the note is in terms made payable. But it is clearly settled that the person beneficially interested may sue upon simple contract; and Arlington v. Hinds, puts promissory notes on the same ground. We do not think it is important to alledge in the declaration, that the note was made payable to the plaintiffs by the nazñe of their treasurer, although that is perhaps the more common form of declaring, and said to be more formal and technical. But certainly not indispensable after judgment, if indeed it would be even upon special demurrer, which I should seriously question. Bailey v. Onondago Ins. Co., 6 Hill, 476.

Judgment affirmed.