Jones v. Moore

50 Vt. 53 | Vt. | 1877

The opinion of the court was delivered by

Ross, J.

The auditor has found that there was no agreement or promise on the part of the defendant to pay the plaintiff for the goods for which, recovery is sought in this action. The question presented is, whether the defendant received the goods under such circumstances that the law will hold him liable to pay for them the same as it would if he had agreed and promised to pay the plaintiff for them, or on what is usually denominated an implied promise. By the defendant’s arrangement with the contractors, Marks & Ellis, and with Marks after he had purchased the interest of Ellis in the contract, they were to supply him with goods for his shanty, and receive their pay therefor in boarding their workmen, they paying the defendant the difference between the price of the board and the cost of the materials thus furnished. Under this arrangement the defendant ordered goods from the plaintiff, who charged them directly to the contractors, and received his pay for them. The purchases from the plaintiff for the defendant’s shanty were in the name, and on the credit, of the contractors, although the goods were ordered by the defendant. When Marks sold his contract out to Kelly & Rogers, the defendant continued boarding their help the same as he had for Marks, and Marks & Ellis. The plaintiff was fully aware of the relations of the defendant to himself and to the work as conducted and managed under Marks and Marks & Ellis, and that, although the defendant ordered the goods from the plaintiff for his shanty, and used them there in his business of boarding the contractors’ laborers, yet, from such acts neither party expected or understood that the defendant thereby became liable to pay the plaintiff for them. The auditor has found that while Kelly & Rogers were contractors, under whom the account in controversy occurred, “the defendant understood that he was doing business all the time the same as he did under Marks & Ellis, and there was no change in the manner or form of transacting the business” while Rogers & Kelly were contractors, “to lead him to understand otherwise,” This finding, we think, is conclusive against the right of the plaintiff to charge and recover for these goods from the defendant. The altered relations between the plaintiff and Rogers & Kelly from what they were between him and Marks & Ellis, cannot affect the defendant, inasmuch as the defendant was not informed of these changes, or that the plaintiff, for that reason, had changed his relations towards him. A party having once commenced to deal with another on specified terms and relations, has a,right to presume that the deal is continued on the same terms and relations,-until he is notified of a change by the other party, or there is such a change in the circumstances attending the deal, that, as a prudent man, he ought to be aware that the deal was being conducted on new terms and new relations with respect to himself, or, as is frequently said, until, as a prudent man, he is put upon inquiry in regard to the manner in which the other party regards their deal. The finding of the auditor is conclusive in favor of the defendant in this respect.

Judgment affirmed.