Graham v. Estate of Chandler

38 Vt. 559 | Vt. | 1866

The opinion of the court was delivered by

Peck, J.

The counsel for the defence insist that the referees ■erred in admitting the plaintiff as a witness. By the general statutes he would be excluded. But the act of 1864, provides that the .provision in the general statutes whieh excludes a party as a witness in his favor when the other party is dead, shall not in any manner ■affect any suit brought or pending on the first day of August, 1863. The suit was brought to recover this demand prior, to August 1st, 1863. The question is whether that was the same suit in which the hearing was had before the referees whose report is now before us in ■this case. The original suit was general assumpsit in favor of this plaintiff against Nehemiah and George K. Chandler. Nehemiah Chandler died and the claims embraced in the suit were presented before the commissioners on his estate, an appeal to this court from their decision, a reference of the cause, and report of referees. The ■defendant, Nehemiah Chandler, having died pending the original suit, the suit as to him was transferred by the statute to the commissioners on his estate. There is no doubt but that this suit is a continuation of the original suit for the purposes of this question, unless there is something peculiar in relation to it that takes it out of the general rule. ' The ground relied on by the defendant is that the •original action was a joint action against the intestate and George K. Chandler, and that the referees have found that the claim was not a joint claim, but a several claim against the intestate, except $50. which the intestate was not liable for, but whieh was a several claim against •said George K. Chandler ; and that it appears that a judgment was rendered against said George K., in the original suit, by the county ■court at the same time the judgment was rendered in this case. We ■see no reason why this is not to be regarded as the same suit that was pending against the intestate and George K. Chandler, his son. 'That was a suit in which, had the intestate lived, the plaintiff might Shave recovered against him his whole claim which the referees find «gainst the defendant. It is true had the case been tried in the intestate’s life time, the plaintiff, in order to obtain a judgment against him, would have been obliged to submit to a judgment in favor of •George K. But the reason for that is, that a plaintiff can not recover a judgment at law in the same suit, and in the same court, for ■one sum against one defendant and for a different sum against another defendant, and that while in such case there are two or more defendants in court,, in order for the plaintiff to recover ■against all, he must prove a joint claim. But where the intestate died and the suit was discontinued as to him, and transferred to the commissioners, this technical difficulty of rendering two such judgments is removed; and it is by no means clear that the plaintiff might not legally recover against George K. Chandler, •even if he fails to make out that it was a joint claim against both. But whether the plaintiff could legally have recovered against •George K. or not, had George K. raised the question, the fact that be has so recovered since the hearing before the referees, does not show that the hearing before the commissioners and referees was not .a continuation of the original suit transferred to another tribunal. It is said that the proceeding before the commissioners was not a con•tinuation of the original suit, because the plaintiff elected to proceed in the original suit against the surviving defendant. Bnt the suit as to the intestate was transferred to the commissioners by operation of law, and whether the plaintiff could also retain the suit in the county •court and there recover against George K. Chandler, on one of the claims that turned out to be a several claim against him, is immaterial. If he did so, it is a matter between them ; it does not prejudice the plaintiff’s right against the intestate in the other tribunal. The plaintiff was properly admitted as a witness by the referees.

It is contended on the part of the defence that there was not such •a breach-on the part of the intestate in neglecting to deed the farm to the plaintiff, as to entitle the plaintiff to recover hack the money he advanced as the consideration for it. The contract found by the referees is, that the intestate, in January, 1854, agreed with the plaintiff that if the plaintiff would furnish him money to pay his debts, he would let the plaintiff have his farm and personal property, and the plaintiff’s wife was to live there and take care of the intestate and his wife. The report shows that the plaintiff removed his wife and family on to the farm in September, 1854, and removed from there by agreement with the intestate in 1856, and had no further use of the farm or personal property. The referees find that-the items of cash that they allow amounting to some $1500. were furnished by the plaintiff under the contract. Just before the suit was-commenced the plaintiff demanded a deed of the intestate and' he' refused, saying the plaintiff had not done as he agreed, and that he,, the intestate, should not do as he agreed. It does not appear but that the plaintiff furnished all the money that the intestate ever-called for, nor does it appear that there were any debts of the intestate that the plaintiff did not pay, or furnish the money to pay. The-money the plaintiff was to pay was in effect payable only on request.. The title of the farm, it is true, was in George K. Chandler, the plaintiff’s son, under a deed from the intestate fraudulent as to creditors. George K. it appears, knew of the contract with the plaintiff, and assented to it, but it does not appear that he was a party to' the contract with the- plaintiff. It was the duty of the intestate to procure the conveyance from his son. We think there was a sufficient breach of the contract to enable the plaintiff to recover back the consideration paid, especially as there was no offer of the administrator to convey the farm to the plaintiff, but on the contrary, it appearing that George K. Chandler has sold and conveyed the farm to another person. If the case is put on the ground of a mutual abandonment of the contract, the result is the same.

As to the statute of limitations relied on in defence, it is clear-that the right of action did not accrue till the demand of the deed; j,ustbefore the commencement of the suit.

It is again insisted that the court erred in allowing interest obi the ¿account from the date of the items, respectively. It is claimed that interest can not be allowed till the debt became due, and hence if the right of action did not accrue till the demand of the deed, the interest should be computed only from that date. It is undoubtedly true, us a general rule, that where a party stipulates to pay a sum of money -at a particular, time, and there is no agreement to pay interest, the. interest is computed only from the time the debt becomes payable. But the rule does not apply to a case where a plaintiff recovers back, the consideration he has advanced under a special contract on the ground of a breach of the contract by the defendant. In such case-the ground of the action is the breach of the contract by the. defend,-* ant, and the plaintiff elects to recover back the consideration, instead of special damages for the breach, interest is computed not merely from the time of the breach, but from the time the consideration was advanced, unless there are some special circumstances that render it inequitable. This only restores the plaintiff to what he has: lost by the refusal of the defendant to perform specifically the special-contract.

Judgment affirmed.