Bacon v. Bates

Demurrer. Order Accepted, Payee may bring Suit in his own Name. Novation. Consideration. Negotiability. W. gave a written order to the plaintiff for all that was due him, on the defendants, and it was accepted by them, by writing their names across the same. Held, on demurrer, 1. That the payee could maintain an action in his own name, and recover of defendants whatever was due from them to W. 2. The giving of the order by W.; receiving and presenting it for acceptance by the plaintiff; and accepting it by the defendants, under the circumstances, completed a novation.* 3. When an order is given by one party, received and presented by another, and accepted by a third, the agreement of each party is a sufficient consideration for the agreement of every other party. 4. The negotiability of the order was restricted, being for an uncertain amount; but this did not render it invalid, nor affect the payee’s right to enforce the same.

This case was heard on demurrer to the declaration, at the March Term, 1880, Redfield, J., presiding. Demurrer overruled, and judgment on new count in the declaration for the plaintiff, for his damages and costs. Exceptions by the defendant. NEW DECLARATION. And now comes the said Daniel Bacon, plaintiff in said cause, by leave of the court first had and obtained by his attorney, and for a further declaration in said cause, declares and says : that heretofore, to wit, on the 13th day of April, A. D. 1878, to wit, at Northfield, in said county of Washington, Laban F. Webster and Francis A Willey, both of Roxbury in said county, made and executed their certain order, in writing, and directed to the said defendants, in and by which said written order, the defendants, John Bannister and Joseph Bates, were requested and directed to pay to the plaintiff whatever sum might then be due and owing from said defendants to said Laban F. Webster and Francis A. Willey on settlement; and the plaintiff avers that thereafter, to wit, on the 15th day of April, A. D. 1878, to wit, at Roxbury in said county of Washington, the said defendants, in consideration of said order in writing, then and there accepted the said order, by writing their names across the same, and then and there, delivered the same to the plaintiff, and $ien and. there, promised and agreed to pay the plaintiff, on his demand, whatever sum or sums of money were then due and owing from the said defendants to said Webster and Willey. And the plaintiff avers, that there was then due from said defendants to the said Webster and Willey the sum of five hundred seventy-one and forty-four one-hundredth dollars (571.44), lawful money of the United States. Yet the sáid defendants, not regarding their said promise, undertaking, and agreement, to pay the plaintiff, the said sum of money, so due and owing, from the defendants, though often requested, have not paid the plaintiff the said sum of money, or any part thereof, but have wholly neglected and refused to do so. The declaration is good. It discloses an-order, and an acceptance thereof, in writing, by the defendants, for a valuable consideration, and a direct promise by them to pay the debt in question to the plaintiff. The transaction amounted to an acceptance, under the law merchant, and created at law a novation of parties. The acceptance made Daniel Bacon the creditor, at law, of the defendants, and the action is well brought in his name. Moar v. Wright, 1 Yt. 57 ; Bucklin v. Ward, 7 Vt. 195 ; Hodges v. Bast-man, 12 Yt. 358 ; G-oodnow v. Parsons, 36 Yt. 46 ; Wescott v. Potter, 40 Yt. 271 ; Smilie v. Stevens, 41 Vt. 321. This was a suit brought in assumpsit by the plaintiff to recover the amount due from the defendants, to Webster and Willey. The plaintiff claims to recover, by virtue of an order, drawn to said plaintiff, by said Webster and Willey on the defendants, and accepted by defendants. When said order was drawn, and when accepted by defendants, the sum then due said Webster and Willey from the defendants was unknown to either party. It was to pay the amount due when delivered to the plaintiffs. This suit cannot be sustained in the plaintiff’s name under the present form'of declaration.- This order is not a bill of exchange, and the mere acceptance does.not entitle the plaintiff to sue in his own name. Arnold v. Sprague, 34 Yt. 402 ; Downer v. Tucker, 31 Yt. 204 ; Collins v. Lincoln, 11 Yt. 268 ; Story on Prom. Notes, 19-32 ; 9 Eng. C. L. 373 ; Chit. Bills, 132-139 ; Byles on Bills, 6-10 ; 26 Eng. C. L. 193. Novation is never presumed, and must be clearly established by a full discharge of the original debt. Parker v. Alexander, 2 La. Ann. 188 ; 11 lb. 687 ; 10 lb. 728; 9 lb. 228 ; Parsons Cont. 217-233.