| Vt. | Jan 15, 1851
The opinion of the court was delivered by
In regard to the straw, which was disputed in the® defendant’s account, we think the facts reported by the auditor show f a case of sale and delivery. In matters of such bulk, all that is ne-‡ cessary, to constitute a delivery, is, that the contract of sale should I be complete, the particular portion set apart by itself, nothing more^ remain to be done on the part of the vendor, and the vendee agree^ to take the goods, as they are, and where they are. All this appears in the present case, and more, — that the plaintiffs had removed a portion of the mass, — which is, under the circumstances, a very decisive act of possession evincing a delivery before. For it seems to have been sold in mass, at $10,00, or $4,00 a ton, calling it two and a half tons. What was taken was taken without weighing, or estimating, so far as appears. The auditor says, “ supposed to be about one ton.” This shows very clearly, that the plaintiffs considered it their own straw and so treated it. The fact, that the defendant threw it out into his yard, is not important, as regards the question of delivery. He became liable thereby to account for its value to him as manure, and the auditor has deducted two dollars on that account.
But we think it may all fairly be said to be matter of contract between the parties. The plaintiffs contracted to have the right to pass and repass the defendant’s premises, agreeing therefor to pay him a reasonable compensation, including all damages to his crops by reason of the fences not being kept up, that is, for the privilege they were willing to assume the burden of making full compensation for all loss ensuing in any of these modes. This surely would not justify the defendant in seeking redress in this form of action.
We suppose the sheep came into the field, through which the plaintiffs passed, by their leaving the fences down, and that the first fault is attributable to them. If the case is not to have this construction, there would seem to have been no ground whatever for making them liable for the damage to the buckwheat. And if the plaintiffs had not been guilty of the first default, the injury would not have occurred. After that they could hardly call, upon the defendant to ^keep up a fence, which otherwise he would not have been required to keep up, perhaps. And even if this charge were disallowed in the defendant’s account, it would not affect the result, the tender exceeding the balance found due more than five dollars.
The matter of the ditch seems to us much of the same character. We entertain no doubt, the arrangement was understood to be made between the plaintiffs and the defendant, and not between the defendant and the rail road company. The parties obviously so considered it. When a settlement was attempted, the plaintiffs did,not object, that the matter was not for them to settle. The plaintiffs, or the rail road company, might have proceeded under the charter to obtain the right perhaps in invitum. But they chose to obtain it by contract. And what was said of paying what the commissioners should estimate it at was merely a mode of determining the price. For when the parties met, it was then agreed to be referred to an engineer. And in the trial before the auditor, the opinion of either might have been procured; and it does not seem to us, that the procuring of this award was a condition precedent to the defendant’s
The right to bring these matters into the settlement of the account must depend upon the contract of the parties. It is not contended, that an express contract to that effect would not be sufficient to create such a right. But an expectation, mutual and well founded, that such would be the case is, in ethics, and in law, we suppose, equivalent to an express contract. All contracts are to be so expounded. And if I know, that another is pursuing a given course of conduct, under the expectation that I will, in consideration thereof, pursue another given course, I am bound, in morals, and in law, to do it, the same as if I had expressly so stipulated. This is fully decided in Gunnison v, Bancroft, 11 Vt. 491.
This view of the case does incorporate these claims for damages into the substance of the account,, and the plaintiffs5 legal claim only extended to the balance upon a final adjustment of the whole account, including these items, as has been often decided before.
Judgment affirmed.