Smith v. Kellogg

46 Vt. 560

• Court: Supreme Court of Vermont
• Decided: February 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Ross, J.

By accepting the personal property named in the .schedule annexed to the lease, under the lease, the defendant A. L. Kellogg and Charles Lowry, to whom the lease was made, though it was unsigned by them, became personally obligated to the plaintiff to return to him the furniture named in the schedule, or to pay for it, whether the same should be destroyed by the elements or not. Patchin v. Swift et al. 21 Vt. 292. The obligation to return or pay for the soda fountain, was the personal obligation of A. L. Kellogg and Lowry; and a breach of it by A. L. Kellogg and Lewis Kellogg, to whom Lowry assigned his interest in the lease, did not render the two Kelloggs liable therefor to the plaintiff. As to the plaintiff, the breach by the two Kelloggs was the breach of A. L. Kellogg and Lowry, and his remedy is against them, and not against the Kelloggs. The assignment of the lease by Lowry to Lewis Kellogg, and the delivery of the soda fountain by Lowry to Lewis Kellogg, as between them, was a good consideration for Lewis Kellogg’s promise to Lowry to discharge all his, Lowry’s, liabilities that might arise under said lease in regard to said soda fountain ; but it would not, without a special agreement to that effect between the plaintiff, the two Kelloggs, and Lowry, give the plaintiff the right to substitute Lewis Kellogg for Lowry under the lease. The action for the breach of a mere personal contract, cannot be brought against the person to whom the contracting party has assigned his interest, but must be brought against the original contracting party. 1 Chit. PL 47. The plaintiff does not claim to recover by virtue of any special contract between him and the two Kelloggs, entered into subsequently to the making of the lease. He claims to recover by virtue of the lease and the assignment by Lowry of his interest therein to the defendant Lewis Kellogg. On these grounds, as we have seen, he is not entitled to recover. The plaintiff, having a claim against the two Kelloggs which they either admit, or which the county court has found, without exception by them, exists against them, cannot, under §78, ch. 30, of the Gen. Sts., take judgment.against A. L. Kellogg alone, for the value of the soda fountain. His proof also shows that A. L. Kellogg is not individually liable for the value of the soda fountain, but is liable with Lowry, and hence, would necessitate the bringing of Lowry on the record as a co-defendant, which could not be done by the county court, if the plaintiff had asked it, so long as he held his judgment for the $14 against the two Kelloggs. In whatever light we view the case, no error is discoverable in the judgment of the county court, and that judgment is affirmed.