69 Vt. 168 | Vt. | 1896
Theplaintiff insists that the court erroneously ordered a verdict in favor of the defendants.
(1) He says the contract under consideration should not be construed to cover the money taken by the plaintiff. By that contract the plaintiff sold and conveyed to the defendants “all his right, title and interest in and to the business heretofore carried on by him and John P. McGowan under the name and style óf The Boston Branch Grocery store, and under the name of Martin J. McGowan, proprietor, at North Barre in the County of Washington.” In another clause,-he “transfers, conveys and assigns” to the defendants “all accounts due said firm,” and in consideration thereof the defendants agree “to pay all debts and assume all
About the first of November the relations of the brothers became unpleasant and John P. went to Massachusetts. His mother procured his return and procured her brother to come and to see if a settlement could not be brought about. After he came and had had some talk with the plaintiff about a settlement, on the evening of Saturday, the 10th of November, the plaintiff, as was his usual habit, took from the money drawer of the store nearly what money there was there and took it to his tenement. This money all came from the business of the store and was not returned. The plaintiff also had money on deposit in the bank coming from the same source. The parties do not agree in regard to what was said about this money during the negotiations, which resulted in the contract.
They agree that the negotiations which so resulted, were so far advanced that the defendants took possession of the store on Monday morning, November 12th, and continued in possession until the contract was signed. On November 14th the plaintiff drew most of the money out of the bank. Two or three forms of a contract were drawn, and finally the one which was executed on November 15th. Construed in the light of these surroundings, this money which the plaintiff took belonged to and was a part of the business done under the name of The Boston Branch Grocery Store, as much as the goods in the store. It came from the sale of such goods, and was intended to be used in purchasing goods for the store. It was a part of the capital which the mother and plaintiff had furnished to carry on the business. By conveying to the defendants all his interest in the business
(2) The plaintiff further contends that the court erred in ordering a verdict for the defendants, for that, conceding that the money taken by the plaintiff from the business belonged, by the terms of the contract, to the defendants, the plaintiff was entitled to a judgment for the balance due him under the contract.
The action is covenant broken. The plea is that the indenture declared on is not the deed of the defendants. In their testimony the defendants concede that they executed the indenture. They also concede that they have received all
This action of the court cannot be sustained on the ground that the defendants, before suit, had made, kept good, and brought into court for the plaintiff a tender sufficient to pay him the balance due under the contract. The exceptions state that the defendants offered to pay the plaintiff such a sum as should be found due him, if he would account for the money he had taken which belonged to the business at the time of the sale. This offer would not defeat the plaintiff from recovering such balance in this suit.
From the copy of the charge, it appears that the court made this ruling upon the ground that the plaintiff had refused to fulfill his part of the contract by claiming, in good faith, that the money belonging to the business which he had taken belonged to him and did not pass to the defendants by the contract. The covenants of the parties to the contract, were, in part, to be performed by them concurrently. The plaintiff was to surrender to the defendants all the property belonging to the business at the same time they were to pay the four hundred and seventy-five dollars. This sum was not the entire consideration for his covenant to surrender to them all the property and assets belonging to the business. They were also to pay and save him harmless from all debts and liabilities incurred on behalf of the business.
The plaintiff has surrendered to the defendants all the assets of the business except the money taken by him, and they still hold possession of the same. The withholding of
Judgment reversed and cause remanded.