Allen v. Thrall

| Vt. | Jan 15, 1838

The opinion of the Court was delivered by

Redfield, J.

The county court decided against the plaintiff, in regard to the charge for a wagon, to which-decision the plaintiff -took no exceptions, and on that account he cannot here insist that that decision was not well founded. If some points in a case are decided against one party, and others against the other, so that the party recovers but a portion of his claim, he must except to those decisions which are against him, or he cannot revise them in the supreme court, although the other party should remove the case into that court, on exceptions to decisions against him.

But as the parties agreed, that exceptions should be considered as having been taken on this point, the court have considered it. We think the county court decided correctly in rejecting it. There could have been no reason why the plaintiff should be permitted to recover for the wagon, except on the ground, that it was delivered to defendant, in payment of usurious interest. If it were so, there could be no recovery in this form of action. A recovery could only be had in the mode pointed out by the statute.

In relation to that portion of the account claimed by plaintiff, for sales by defendant, of the leather formerly belonging to the firm of Allen & Drinwater, and by them assigned to defendant, as security for certain debts, and liabilities of his, on account of said firm, we think it cannot be recovered in this form of action.

It was delivered to the defendant under a special contract to account for the proceeds in a particular manner, specified in the contract. Upon this contract, a special action of assumpsit will lie, no doubt, for not aplying the proceeds in the manner stipulated. Perhaps too, general indebitatus assumpsit will lie, to recover the balance due upon the general account, either for money had and received, or for goods sold and delivered.

But it is very apparent, that the most appropriate form of action is, an action of .account at common law, according to the terms of the contract upon which it was received.

The English courts, since the action of account has there become obsolete, from a reluctance, perhaps, to compel parties to resort to a court of equity, have finally extended the action of assumpsit to almost all cases of account however complicated, notwithstanding the case of Scott v. McIntosh, 2 Camp. 238, where Lord Ellenborough says, “ The plaintiff should have brought an action of account, where auditors would have been appointed, who could have done justice to the parties.” And in Tompkins v. Willshear, the court says, “ It shows the decency of counsel, in not pressing such a case to a conclusion.” But at the same time they held that assumpsit will lie if persisted in, but the universal practice now is, in such complicated transactions, where assumpsit is brought, to continue the case indefinitely, until the parties agree tó a reference. 5 Taunt, 431; 1 Petersdorfi, 140. 2 Saunders R. 127, note (6.)

But in no- case, can assumpsit be sustained for a particular item of the account, unless the defendant has misapplied it$ (which is not here pretended) and thus made himself an absolute debtor. 11 Modern, 92; anonymous. Poulter v. Cornwall, 1 Salkeld, 9. Hartop v. Wardlaw, 2 Shower, 301. 1 Petersdorff, 139.

There is, then, no pretence to sustain this action. The goods were never sold defendant; he received them by way of assignment as collateral security. The money, which defendant received for them, Was not plaintiff’s money; but by defendant to be used in extinguishing certain liabilities of his own, and debts due him. Sd that; in neither view could plaintiff be permitted to charge the account, either as goods, or money. And there does not seem to be much ground to argue that defendant was guilty of a wrong, in selling this leather, for that seems to have been the very object for which he received it. He may have failed to apply the money in the manner stipulated. If so, he may be compelled to rena proper account.

Judgment of county court reversed, and judgment for plaintiff on the report, deducting the charges for leather received under the contract.