Cutler v. Smith & Robbins

43 Vt. 577 | Vt. | 1871

The opinion of the court was delivered by

Peck, J.

By the written contract between the plaintiff and defendants, of December 27, 1866, the defendants, among .other things, agreed to take to pieces the plaintiff’s engine, then in the building leased by plaintiff to the defendants, and clean the same, and at the expiration of the lease put it together again and leave it in good running order, ordinary wear excepted. The referee having found that the defendants performed the other stipulations in that contract on their part, the question presented is whether, upon the facts found by the referee, the defendants are liable for neglecting to perform this stipulation in relation to the engine, which it is not claimed on the part of the defense that they ever did perform. This depends upon the legal effect of the subsequent verbal agreement between the parties, of April 10, 1867, and what was done under it. By this verbal agreement it was stipulated, among other things, that the defendants might remove the engine and bother from the building at their expense, on condition that they were to plaster overhead and lay a floor under where the bother was; and if the plaintiff ever wanted it back he was to put it back at his own expense. The engine and bother, under this agreement, were immediately, the same day, removed by the defendants, under the advice and with the assistance of the plaintiff. The referee finds that previous to this agreement of April 10,1867, the engine had been injured to the amount of $10, by the neglect of the defendants to take it down and clean and oil it, as it was their duty to have done under the written contract of December 27, 1866. The referee having found that at the time of the making of the contract of April 10, 1867, it was understood that that agreement then made covered all claim on the part of the plaintiff under the contract in writing executed December 27, 1866, relative to the condition of said engine at the time, finds that the plaintiff is not entitled to recover for such injury incurred previous to April 10, 1867, if in law the agreement of April 10, 1867, under the facts reported, is a defense to such breach of the contract of December 27, 1866. As to the plaintiff’s claim for any neglect of defendants subsequent to April 10, 1867, when the verbal agreement was made, and the engine moved, the referee finds that at the time of the making of the last named contract and the removal of the engine in pursuance of it, as above stated, the parties then regarded the engine and bother delivered to and accepted by the plaintiff, and wholly subject to his control, although the principal parts of it remained in the building and upon the premises occupied by the defendants, after it was removed, but where the plaintiff frequently was, and could see its condition. There is no ground left by the finding of the referee upon which the plaintiff can recover either the $10 or the $200, unless there is some technical objection to giving effect to the verbal agreement of April 10, 1867, and what was done under it, according to the intent of the parties. After a simple contract is broken and damage thereby accrued, it cannot be discharged by parol without satisfaction or some consideration, though it may be before. But if the new agreement is upon good consideration, and performed by the defendant, it is a satisfaction and a defense ; and it makes no difference that the prior agreement is in writing, and the new agreement verbal. The verbal agreement of April 10, -1867, was upon good consideration and fully performed by the defendants, and is a complete defense to the entire claim of the plaintiff under the written agreement of December 27, 1866.

Judgment reversed, and judgment for defendants.