¶1The opinion of the court was delivered by
¶2It is objected by the defendant, that this action is misconceived, and should have been brought by Spalding. But by a recurrence to the facts reported by the auditor it will be seen, that the plaintiff had the legal interest in the property and Spalding only the equitable interest. It is well settled, that the person having the legal interest has at law the right of action.
¶3In regard to the question of the admissibility of Spalding as a witness, after the execution of the releases, which are attached to the case, little need be said. The plaintiff could not be compelled to account to Spalding for any portion of the money recovered in this action, in the face of his release; neither could Spalding be compelled to pay any costs to the plaintiff, in the face of the plaintiff’s release. The case in principle is the same as Edwards v. Golding et al., 20 Vt. 30.
¶4A question has been raised in relation to the effect of the defendant’s order upon Mr. Warner in favor of Spalding, requesting him to pay this account out of the defendant’s board bill. Under the circumstances attending this case, this cannot preclude the right to recover. It was understood by the parties, that the drawee had no funds and was under no legal obligation to accept the order, and if he did do it, it was mere matter of accommodation. It was not given as an ordinary business transaction, but simply that the payee might get the money of the drawee, if he should see him before the defendant did; and in this light the parties understood it, most unquestionably. After Spalding failed to get any thing on the order, the defendant admitted his liability for the flour now sued for. Upon such a state of facts there can be no merger of the account in the draft, for the best reason in the world, the parties did not so intend it. See Tracy v. Pearl, 20 Vt. 163.
¶5The judgment of the county court is affirmed.