The opinion of the court was delivered by
Redeield, J.
Demurrer to the plaintiffs’ declaration. The declaration is long and circumstantial, but in substance avers that the defendant represented that he was under contract to the railroad company, to furnish wood along its line in Highgate, to be paid for by the first of June, 1879. He solicited, and obtained credit of the plaintiffs, in November, 1878, on the promise to reimburse them from the avails of the wood. The plaintiffs ad*618vanced from time to time, on defendant’s orders, a large sum, until after the first of June, 1879, the defendant affirming all the while to the plaintiffs, that the avails of the wood would be forthcoming to the plaintiffs; when, in fact, the defendant had promised the avails of the wood to one Chamberlain, his creditor, before the contract with the plaintiffs ; and after the wood was delivered, on the 8th of June, he assigned in writing, such claim, to said Chamberlain, of which the railroad company had notice. The defendant’s duties and obligations rested altogether in promise. The promise to get out the wood for the benefit of the plaintiffs, after he had promised the same thing to Chamberlain, shows his moral obliquity, but no legal incapacity to disappoint either, or. both, if he chose to break his promises. There is no representation of defendant that he had property in possession ; but that he had a contract, which, if performed, would be of value. That he had such a contract was true, and that he afterwards performed it; but he assigned its avails to another person, in violation of his promise to the plaintiffs. He has not done as he agreed ; it is “ a common infirmity.” In Dyer v. Tilton, 23 Vt. 313" court="Vt." date_filed="1851-02-15" href="https://app.midpage.ai/document/dyer-v-tilton-6574530?utm_source=webapp" opinion_id="6574530">23 Vt. 313, this court decided that “ trespass on the case cannot be sustained for false and fraudulent representations, made by defendant in reference to his own pecuniary circumstances and responsibility ” ; and in Jude v. Woodburn, 27 Vt. 415" court="Vt." date_filed="1855-02-15" href="https://app.midpage.ai/document/jude-snow--co-v-woodburn-6575534?utm_source=webapp" opinion_id="6575534">27 Vt. 415, this court decided that no action for the fraud will lie, while the contract of purchase subsisted ; and that the sale will be treated as affirmed, unless rescinded the first opportunity after notice of the fraud. In this case some two years elapsed after notice of the fraud before this suit was brought. The case is controlled by the adjudged cases in this State.
The judgment is affirmed.