Cole v. Champlain Transportation Co., 26 Vt. 87

26 Vt. 87 | Vt. | 1853

By the Court.

In this case we are inclined to hold, that according to the case of McGlynn v. Billings, 16 Vt. 329, the plaintiff was bound to consider the money, which he received, in full of the bill upon which Burton offered to pay it. It may sometimes happen that parties may differ, as to whether a certain amount paid is to be received in full of a certain claim, and it may be difficult to determine whether the one or the other party may not have yielded more or less, from their original pretentions; but here there is no reason to raise any question. And as the money did pay the principal, we think very obviously the plaintiff, under the circumstances, cannot now claim a balance of interest, which the auditor has allowed him of $2,01, which must be deducted.

II. As to the evidence to show the quality of the wood inferior to plaintiff’s representation, there seems to be two answers.

1. It is not said it was offered to show that the representation was fraudulently made by plaintiff. And treating it as a virtual warranty, and we do not perceive any other view with which it could be offered, such evidence would be to control, the written contract, made at the time.

2. The defendants having received the wood, and used it mostly without objection, and then paid for most of it without objection, it would, in any view, be quite too late to raise any question, either of fraud or breach of warranty.

3. As to the ninety-three cords, it came within the written contract, and we do not think the report states any such badfaith or negligence on the part of plaintiff, or his servants,, in commingling it with the wood already measured, as to fairly subject the plaintiff to the loss of the wood. And we do not understand by the report, that any portion of the wood formerly measured by Boardman, went to make up this ninety-three cords, but the contrary.

If then the plaintiff properly placed it upon the shore, under the contract, it was a waiver of the condition in the contract, that the wood should be measured and surveyed by B. when the defendants, by their agents, removed'it and used it. And if this was done by such agents as they employed to run their boats, and carry wood, and build fires, it will bind them under the circumstances of this case, whether they were boatmen or directors. It Was the business of the directors, if they did not intend to pay for the wood, thus placed there under the contract, to see to it, that their workmen did not remove it, and use it, and after having allowed them to do that, the company must pay for it.

4. The same principle will apply to the culled wood. Sixty cords were taken by direction of Burton, while he understood he was acting under a contract of purchase at 37J cts., and the other forty by the same workmen, it would seem, before they were made to comprehend the revocation of the first order; so that the whole one hundred cords may fairly be regarded as taken by direction of Burton, upon the same expectation, and the auditor very properly regarded the plaintiff, by charging it on book, as having virtuaEy acceded to the contract, which Burton claimed, and has charged the defendants, with the wood, at the price Burton understood he was to have it for.

5. In regard to the wood carried to Shelburne, we do not see any • possible question. It was received, used and measured by the very man who was to measure it.

Judgment reversed, and judgment on the report for the sum reported deducting $2,01 and adding interest since the judgment in the County Court.