39 Vt. 241 | Vt. | 1867
The opinion of the 'court was delivered by
This court recognize the settled rule of law, that a payment made upon an existing debt cannot be recovered back by suit by the party making it, even though a judgment be taken and collected for the debt, without applying and deducting such payment. If the present case falls within that rule, it must be subjected to its operation, and the plaintiff cannot recover, however glaring the dis
The question therefore is, whether it is shown by the exceptions, that the money received for the pelts was, in the hands of the defendant, a payment on the note he held against the plaintiff. The evidence bearing on this subject is detailed, but it is not stated how the court found the fact. It is to be inferred from the rendition of judgment for the plaintiff, that tÉe court did not find the fact of payment. If the court were warranted in not finding that fact, then the judgment was correctly rendered, — if not thus warranted, then the judgment must be reversed, although it should accord success to dishonesty.
It is to be noticed that the defendant became the factor of the plaintiff to sell the pelts and to receive the money therefor ; and the money would, in any event, come into the hands of the defendant as such factor, charged with a trust and accountability, unless that character was changed by some new agreement that operated upon both parties. After the pelts had been sold, the defendant infoi’med the plaintiff of the fact; whereupon the plaintiff said to the defendant that he did not want the money — -he was owing the defendant a note on which he wanted it to apply ; and it seems that the defendant .elicited on cross-examination of the plaintiff as a witness, that the plaintiff agreed it might be applied in payment on said note.
Did the defendant agree that, he would apply it, so as to bind both parties at and from the time of such agreement? All that is shown to have occurred prior to the receipt of the money by the defendant, is, that when the plaintiff told the defendant he did not want the money, but wanted it applied on said note, the defendant said “ very well,” or “ all rightand the exceptions state that no other conversation on the subject was shown to have taken place between the parties. It is plain that what was thus said by the defendant might be construed to be an assent to the proposition and wish of the plaintiff; but it was not in terms, nor necessarily by construction, so a promise on his part as to bind him thus to apply it, and bind the plaintiff to have it thus applied. There was no new
There is another ground presented by the exceptions which is conclusive in favor of the judgment. Until the money had been received by the defendant, it could not become payment. As he defends himself on the ground that the money had become payment on his note at the time he recovered his judgment on it, the burden was on him of showing that in fact he had received the money before
’The judgment of the county court is affirmed.