18 Vt. 238 | Vt. | 1846
The opinion of the court was delivered by
It appears, in this case, that a contract existed between the parties, by which the plaintiffs were to manufacture for the defendant a quantity of wool and receive therefor twenty five cents per yard. The defendant was entitled, under this contract, to receive six hundred and sixty seven yards, which was called for at four several times, and the whole was not delivered. Under a belief that the defendant was indebted to them, the plaintiffs commenced this action on book account against him. The auditor, however, reports, that the defendant did not receive all the cloth to which he was entitled, and charges the plaintiffs with the value of that retained by them, deducting the price of manufacturing, and finds a small balance due to the defendant.
We see no reason to doubt, but that the auditor was correct in his view of the case. The cloth was demanded and was not delivered ; it has not been offered to the defendant, and there is no evidence, that the plaintiffs have it on hand, set apart and designated for him. The auditor therefore might, with propriety, consider that the plaintiffs had appropriated the avails of this cloth to their own use, either by sale, or otherwise, and hold them accountable in this action for the value, or the avails of the same. The principles, which have governed the court in cases similar to this heretofore, particularly in Wilkins v. Stevens, 8 Vt. 214, and more particularly in a case decided, during this circuit, in Chittenden County, of Hickok & Catlin v. Stevens et al. [ante, p. 111] must regulate our decision in this case.
The report is accepted, and judgment rendered for the defendant to recover the balance reported.
