Camp v. Page

42 Vt. 739 | Vt. | 1870

The opinion of the court was delivered by

Barrett, J.

The evidence on the part of the defendant tended to show that Martin & Perry agreed with each other that Martin should make a bargain with the defendant to do blacksmith work for Martin, and take his pay therefor out of Martin & Perry’s store; and that Martin did make such a bargain with the defendant, and informed Perry of it at the time, and that the defendant did work for Martin, and from time to time took goods at said store under said agreement that the work he did for Martin should be in payment for said goods. If this was so, then of course the defendant did not owe Martin &'*Perry any thing when he gave the note. Each item of work operated, when done, a payment for so much for the goods the defendant had taken or should take out of the store under said agreement, and each item of goods so taken operated a payment for so much for any work the defendant had done or should do for said Martin. So, to the extent that the goods and the work balanced each other, there was nothing due from the one party to the other, as between the defendant on the one hand, and Martin & Perry on the other. It might properly have merited enquiry, therefore, whether there was any consideration for the note when it was given. Again, if the defendant’s version be true, it would seem that it might have been questioned whether Martin & Perry could claim for that note the usual character borne b.y such paper : and whether it was entitled to be regarded as any tiling more than a memorandum or statement, over the hand of the defendant, of the amount of goods that the defendant had taken out of the store, under the said agreement between the parties. Such was, in fact, the character and office that, by the understanding of the parties at the time it was given, the note was to have and serve. If this was so, then it would not be the right of the payees of said note to undertake to enforce it as the evidence of a money debt against the defendant; for the consideration on which it purported to be based, viz.: the ‘Rvalue received,” has already been paid to them by the work done by the defendant for Martin.

The case, however, does not seem to have been tried on either of the grounds above suggested, but on the ground that there was an agreement between Perry' and the defendant, on the occasion of the giving of the note, which was subsequently ratified by Martin, and assented to by Perry, that the v^ork done by the defendant for Martin should apply as payment of the note, according to the original agreement under which the deal and business between the parties had gone on. Now, it seems to us that the rulings to which exception was taken were eminently proper, both with reference to the law and the justice of the case. Martin & Perry were partners at the time the note was given, and while all the matters were transpiring between^them and the defendant in relation to it. It was clearly competent for the payees, while they held the note, to make a binding and operative agreement that it should be satisfied by the work the defendant had done for Martin, and if ^such agreement was made by Martin and assented to by Perry, it became operative as the agreement of both Martin and Perry. The evidence objected to was treated as bearing on this point. Perry denied any such agreement. In the conflict of the testimony, as between the .defendant and Martin on the one side, and Perry on the other, it was proper, upon the most common principles, to elicit and give in evidence the entire transaction constituting the dealings, as a part, and out of which the note had come to pass; for it bore directly on the question in dispute, viz : whether there was an agreement between the parties to the note, after it was given, as to the manner in which it should be satisfied, and what such agreement was. If the jury should, as they did, find that the version given by the defendant of what transpired up to the giving of the note was the true one, they would be very likely to regard it as highly probable that Perry had not made up his mind to turn rascal, as against the defendant, until he had got into a quarrel with Martin, and if he was still under honest impulses without any motive for acting counter to them, it would be a generous inference in favor of Perry that he, in fact, did concur with Martin, after the note had been given, that the work done by the defendant for Martin should be payment of the note, just as it had been payment of the account of Martin & Perry at the time the note was given. Kimball v. Loche, 31 Yt., 683. Such an agreement having been found by the jury, it can not be regarded in any sense as so executory, .or so unexecuted, as not to operate a payment of the note. On the contrary, the very moment the agreement was consummated by the consent of Perry, the note became eo instanti satisfied in the hands of the payees without any other act or ceremony. The account of the defendant operated a satisfaction of the note. The note, pro tanto, operated a satisfaction of the account.

This case differs widely from that of Bronson v. Rugg, 39 Vt., 241, in which the plaintiff made a proposal as lo ,tho application of money thereafter to be received by the defendant as the factor of the plaintiff, to which the defendant made an equivocal reply; but the subsequent course of the defendant showed that he did not accept or act upon such proposal of the plaintiff, but the contrary.

The judgment of the county court is affirmed.