Groot v. Story

41 Vt. 533 | Vt. | 1869

The opinion of the court was delivered by

WilsoN, J.

Upon the facts of this case, no well grounded objection can be made to the common counts, or to the money counts alone. The defendant, by taking back the piano, became indebted to the plaintiff for the $295 ; and the consideration of that indebtedness was for money, by the defendant had and received <of the plaintiff, for which the defendant executed the due-bill in 'question. It is well settled law in this state, that even where there has been a special agreement, and the terms of which have been performed, so that nothing remains but the duty to pay money, the common counts will lie. Way v. Wakefield, 7 Vt., 223; Mattocks v. Lyman et al., 16 Vt., 118 ; Perry v. Smith, 22 Vt., 301.

It is claimed by the defendant that the right to select a piano was conferred on Groot personally, and could not be exercised by another without the consent of the defendant. This position, we think, is not well taken. There is nothing in the evidence to except the claim from the general rule as to the assignability of choses in action. Noyes v. Brown et al., 33 Vt., 431. The sale and transfer of the writing, by Groot to Lighte & Co., gave them all the rights that he had under the contract, to be enforced by them in the name of Groot. From this it follows that Lighte & Co., or any one duly authorized by them, could select such a piano as the defendant, by the terms of the agreement, was .bound to deliver.

The main questions presented by the exceptions relate to the authority of Lawrence to select and demand such a piano as the contract called for, and to the selection and demand made by him. The due-bill upon its face shows that the parties contemplated that the plaintiff should select a piano worth more than $295. The defendant claimed, and his testimony tended to prove, that the plaintiff was to select a piano worth from $550 to $600, under the direction of the defendant. The requisite authority to make a legal demand was to be determined by the proof of the terms of the contract. Lawrence had possession of the due-bill, but his authority to make a legal demand could not be determined by the mere fact that be was the attorney of tire plaintiff, and as such bad tbe claim in Ms bands for collection, for bis authority was limited by the instructions of bis principals, contained in their letter to him, under which be acted. He demanded a piano worth about $300, which demand would be sufficient if the jury found that the demand was for such a piano as the plaintiff, by the terms of the contract, had the right to select. But ho had no authority to select or demand, and did not select or demand, or offer to select, such a piano as the contract, according to the defendant’s testimony, called for. It is insisted by the plaintiff’s counsel, that the statement of the defendant that he would not let Lawrence have “ that piano, or any other,” rendered any further demand unnecessary. But we think the declarations of the defendant, detailed in the bill of exceptions, as to what he would or would not do in regard to making payment, or delivering the piano demanded by Lawrence, they having been made to a person whose authority, according to the defendant’s testimony, was not co-extensive with the terms of the contract, should not operate as a waiver by him of any want of authority in Lawrence to make a legal demand,, nor a waiver of the defendant’s right to claim that a demand should be made, before suit, for such a piano as the plaintiff was required to select. "We can not presume that Lawrence would have done, or offered to do, what he had no authority to do, if the defendant had not made those- declarations. They were made in reply to what the defendant claimed, and what his testimony tends to show was a demand unauthorized by the terms of the contract; and they should be construed as a refusal merely to deliver what he claimed the plaintiff had no right to receive.

If Lawrence had no authority to select or demand, and did not select or offer to select, such a piano as the contract called for, the'declarations of the defendant that he would not pay the due-bill or deliver the piano demanded, could not be treated as a refusal to perform the contract according to its terms as indicated by his testimony, and should have no more effect than if he had made those declarations to a stranger. The defendant’s testimony tended to prove that ho had always been ready to deliver such a piano as bis- testimony tended to show the plaintiff was to select, or pay the money upon such selection, according to the terms of the contract. The court charged the jury (among other things) that “ the letter from Lighte & Co. to Lawrence authorised him to make a legal demand, and any demand made by Lawrence within the limits of his authority, and according to the terms of the contract, would be sufficient.” It is evident upon the view we have taken of the case, that the question whether the authority of Lawrence was sufficient to enable him to make, or to have made, a legal demand, depended upon the finding of the jury as to the terms of the contract. If the defendant was correct as to the terms of the contract, then Lawrence had no authority in the premises. The court further charged the jury “ that if they found the facts to be as testified to by Lawrence in respect to the demand by him, and the refusal of the defendant to let him have the $325 piano, or any other piano he might select, that such demand and refusal were sufficient to entitle the plaintiff to recover so far as a demand was concerned, and that thereafter Lawrence was under no obligation to make any other selection or demand.” Wo think-that part of the charge last above quoted was erroneous. It allowed a recovery by the plaintiff on the ground that the defendant refused to deliver the piano demanded, or any other piano that Lawrence might demand, when he did not select or demand any other, notwithstanding the jury might have found that the defendant was correct as to the terms of the contract, and that Lawrence had no authority to select or demand, and did not select or demand, such a piano as the contract called for. The jury would understand from the charge that they were to treat the declarations of the defendant as to the piano demanded, and his general declaration as to “ any other piano ” Lawrence might have claimed to select, (but did not select, or offer to select, any other,) as a refusal to perform the contract at all. We think the court should have submitted the case upon the defendant’s theory, as presented by his testimony, as well as upon the aspect of the case presented by the testimony of the plaintiff, and have told the jury that if they found the contract was as the defendant’s testimony tended to show it to have been, then Lawrence had no authority to make, and did not make, a legal demand, and that the plaintiff would not be entitled to recover. The result is that the judgment of the county court is reversed, and the cause is remanded.