| Vt. | Feb 15, 1859
I. Was the contract within the statute of frauds?
The defendant said to the plaintiff, “I want to hire you to board Mr. Walker; if you will do it, I will see that you shall be well paid, and have the money for it.” The plaintiff boarded Mr. Walker, the charge for which constitutes his account. It was never charged to Mr. Walker, or to anybody except the defendant. The auditor finds that the plaintiff furnished the board upon no other reliance than the direct individual liability
II. Was the settlement of February 25, 1856, a bar to a recovery for this account ?
1. The fair construction of the bill of exceptions shows that that was a settlement only of the plaintiff’s shop accounts as tailor, and if so, could not include other account not included or intended to be adjusted.
2. But if the settlement were properly to be treated as a settlement of all book accounts between the parties, it would be only prima facie evidence of the settlement of this account. The burden of proof would be on the plaintiff to show that in fact it was’ not settled. It is admitted that it was not settled. On that point both parties agree. Being a just account and never having been settled, it can not be extinguished by a settlement that did not touch it.
The facts, that the account was not alluded to at the time of the settlement (supposing that settlement to have been intended as a settlement of all book accounts between the parties), and that on the trial before the auditor the plaintiff gave no reason- why it was not then brought forward, were evidence strongly tending to show the account not a just one. But they do not operate as a bar to the suit. The account, if proved to be just and not settled, remained a valid debt; Austin v. Berry et al.. 3 Vt. 58" court="Vt." date_filed="1830-01-15" href="https://app.midpage.ai/document/austin-v-berry-6571231?utm_source=webapp" opinion_id="6571231">3 Vt. 58; Darling v. Hall, 5 Vt. 91" court="Vt." date_filed="1833-01-15" href="https://app.midpage.ai/document/darling-v-hall-6571482?utm_source=webapp" opinion_id="6571482">5 Vt. 91; Whiting v. Corwin, 5 Vt. 451" court="Vt." date_filed="1833-02-15" href="https://app.midpage.ai/document/whiting-v-corwin-6571550?utm_source=webapp" opinion_id="6571550">5 Vt. 451; Stevens v. Damon, 29 Vt. 521" court="Vt." date_filed="1857-04-15" href="https://app.midpage.ai/document/stevens-v-damon-6576216?utm_source=webapp" opinion_id="6576216">29 Vt. 521.
III. It is claimed that the Methodist Church in Pawlet, organized according to the usages and regulations of the Methodist Episcopal denomination in this State, was in the nature of a partnership; that the plaintiff and the defendant, being members of the church, were so far co-partners that the acts done by the defendant as a steward of the church, must be deemed to be done by the implied assent and knowledge of the plaintiff, even though he had in fact no such knowledge ; and that the plaintiff in his dealings with the defendant as to the board of the clergyman, must be held, prima facie, as dealing with him as a steward, and can not be allowed to say, without actual proof of the fact, that he trusted him as an individual.
The plaintiff could deal with the defendant either as steward or upon his own responsibility as an individual. The auditor has found that the credit was given to the defendant as an individual. The defendant applied to the plaintiff, not as steward, but as an individual. The plaintiff did not know he was a steward. Under such circumstances, it was for the defendant to show that the credit was given not to him, but to the society of which he was an officer. This he has failed to do. The finding of the auditor settles the point.
The judgment of the county court is affirmed.