Valiquette v. Clark Bros. Coal Mining Co.

• Decision Date: 06 October 1910
• Citation: 77 A. 869,83 Vt. 538
• Parties: VALIQUETTE v. CLARK BROS. COAL MINING CO.
• Court: Vermont Supreme Court

77 A. 869

83 Vt. 538

VALIQUETTE

v. CLARK BROS. COAL MINING CO.

Supreme Court of Vermont. Rutland.

Oct. 6, 1910.

Exceptions from Rutland County Court; E. L. Waterman, Judge.

Action in general assumpsit by William H. Valiquette against the Clark Bros. Coal Mining Company. There was a judgment for plaintiff, and defendant brings exceptions. Affirmed.

From the agreed statement it appears that during all the time material to this case plaintiff was the proprietor, and A. J. Boynton, manager, of the Berwick Hotel, in the city of Rutland, Vt, and that defendant was a corporation organized and existing under the laws of the state of Pennsylvania, having its principal place of business at Philadelphia, and engaged in the business of mining and selling coal; that in February, 1908, defendant employed one J. F. Scott to sell coal for it, he to have a graduated commission of so much per ton, varying with the price obtained by him for the coal; that on April 15, 1908, Scott came to the Berwick-Hotel, engaged board therein, and continued to board there till June 16th following, except during short absences from time to time; that he told Boynton that he came to Rutland in behalf of defendant corporation, in which he said he had an interest. Scott frequently received mail inclosed in envelopes having defendant's name printed thereon, and addressed to Scott at the Berwick Hotel. On April 30, 1908, Scott was owing plaintiff $47.50 for board, and handed Boynton a draft of that date for $75 drawn by Scott on defendant in favor of the Berwick Hotel, and requested Boynton to apply the draft in payment of the board bill, and in a few days to give him the balance in money. Boynton took the draft, deposited it in a bank for collection, and it was paid by defendant in due course, and the balance $35.94 was banded Scott as requested. On May 14. 1908, Scott was owing plaintiff for board and for cash advanced, and handed Boynton a like draft for $75, and requested him to apply $20 of the proceeds to the payment of the cash advanced, and to give him the balance in cash, which was done. This draft was deposited for collection as was the first and paid by defendant in due course. On May 25, 1908, Scott, who was then owing plaintiff a considerable amount for board and for cash advanced, handed Boynton a draft of that date for $150 drawn by Scott on defendant in favor of the Berwick Hotel, and requested credit therefor on his bill, and a further advance of $110 in cash. This request was granted, and the draft paid as were the other two. On June 15, 1908, Scott, who then owed plaintiff for board and cash advanced, handed Boynton a draft for $250 drawn on defendant in favor of the Berwick Hotel, and requested him to cash same, pay the board bill, and give Scott the balance, $125, in cash, which Boynton did. This draft was deposited like the others, was protested on June 22, 1908, for nonpayment, and is the draft in suit. Till said draft was protested, neither plaintiff nor Boynton had any intimation that Scott did not have full authority to make drafts on defendant for his board and expenses; hut he was never so authorized, unless the acceptance of said three drafts was in law an implied authorization. Scott had no interest in defendant's business except as above stated, and, when he made the draft in question, he was indebted to defendant. Plaintiff never caused defendant to be notified of the representations made by Scott to plaintiff and Boynton. On April 29, and on May 2, 1908, defendant by letter remonstrated with Scott for making drafts on it, and notified him that it had not authorized payment, and could not accept drafts. And on June 12, 1908, defendant by letter notified Scott that "we are simply amazed that you will continue to draw drafts contrary to our wishes and instructions. In order to protect your credit we are paying this draft, but in no circumstances will any more drafts, checks, or orders for money of any kind, form, or description be paid. We cannot do business this way."

Argued before ROW ELL, C. J., and MUNSON. WATSON, HASELTON, and POWERS, JJ.

M. C. Webber, for plaintiff.

E. H. O'Brien, for defendant.

ROWELL, C. J. It is objected that the action cannot be maintained in the name of the plaintiff because his name does not appear on the face of the draft in suit, which is drawn in favor of the Berwick Hotel, of which the plaintiff was sole proprietor at the time in question; and Bank of United States v. Lyman, in the federal Circuit Court for the District of Vermont, 20 Vt. 666, Fed. Cas. No. 924, is relied upon in support of the objection, and it does support it, for it holds precisely that. But such is not the law of this state, and has not been since the case of Arlington v. Hinds, 1 D. Chip. 431, 12 Am. Dec. 704, decided in 1824, in which the contrary was held, and which has been followed by this court ever since. Thus in Rutlaud & Burlington R. R. Co. v. Cole, 24 Vt. 33, the note sued upon was payable "to the order of Samuel Henshaw, Treasurer." Henshaw was the plaintiff's treasurer, and the note was given for assessments on shares of the plaintiffs capital stock owned by the defendant, and was declared upon as payable to the plaintiff. The same objection was made there as is made here, but it was held that as the consideration moved from the plaintiff, and the note was in effect given to it, the action was maintainable in its name. There are many other cases in this state to the same effect, and among them is United States National Bank v. Burton & Sowles, 58 Vt 426, 3 Atl. 756. That was assumpsit on a draft, and it was objected that the plaintiff could not maintain the action because the draft was indorsed to its cashier instead of to itself. But it was held to he the settled law of this state, contrary to the general commercial law, that an action upon a promissory note or a draft can be maintained in the name of the party beneficially interested when the instrument is in terms made payable or indorsed to his agent as treasurer, cashier, and the like. We hold, therefore, that this action is maintainable in the name of the plaintiff, who is the party beneficially interested, and, indeed, the only party that can sue, for Berwick Hotel is not a legal entity, but only a name by which the plaintiffs hostelry is designated.

It is further objected that general assumpsit will not lie, but that the plaintiff should have declared specially. This question was not raised on trial, and therefore cannot be raised here, unless it is involved in the judgment, which was rendered on agreed facts, and to the rendition of which the only exception in the case was taken. But the question is not involved in the judgment, for its decision was not necessary to the validity of the judgment, and therefore the exception to the judgment does not raise the question. Farrant v. Bates, 60 Vt. 37, 11 Atl. 693; In re Hall's Estate, 70 Vt. 458, 41 Atl. 508; Baker v. Sherman, 73 Vt. 26, 50 Atl. 633. The objection is one that could he waived, and was waived by not being made on trial, for it did not go to the jurisdiction, but only to a matter of pleading and procedure. Even objections to the form of action are waived, if not made on trial. Bliss v. Allard, 49 Vt. 350. And see Hammond v. Wilder, 25 Vt. 342; Chaffee v. Hooper, 54 Vt. 513. Bickford v. Gibbs, 8 Cush. (Mass.) 154, was assumpsit against guarantors of a note who were sued as makers. It was objected above for the first time that the guaranty should have been specially declared upon. But it was held that the objection came too late, and the plaintiff had judgment.

As to the merits of the case, it is agreed that Scott had no authority to draw the draft in suit on the defendant, unless its acceptance of the three prior drafts was in law an implied authority, and we think it was, for it appears that those drafts were drawn without authority, and their payment was virtually holding Scott out to the plaintiff and accrediting him as having authority to draw the draft in suit. It was an approval of a series of like prior acts that well might have induced the plaintiff to believe that such authority existed, and to take the draft on the faith of it, and that he was thus induced, and did thus take the draft, is not questioned in argument except as hereinafter stated. If the defendant, after having accepted and paid the third draft, did not want to be bound by a fourth, it should have notified the plaintiff to that effect; and, as it did not, it is to be taken as assenting thereto. This is the doctrine of Keyes & Co. v. Union...