Moore v. Swanton Tanning Co.

60 Vt. 459 | Vt. | 1888

Tbe opinion of tbe court was delivered by

Taet, J.

No claim is now made by the orators' as to matters embraced within the prayer of the bill, except such as relate to the accounts between the parties, and enforcing the collection of any sum found due them from the defendants.

Was there error in the decree ?

I. The main portion of the account passed upon by the master accrued between the thirteenth day of October, 1874, and the cessation of the tanning company’s business in 1882, under the written contract of the former date. Prior to the execution of the written contract, an account bad accrued in favor of the orators amounting at the time of the contract to six thousand three hundred ninety-one 81-100 dollars. The account accrued just prior to the execution of the contract, and the character of the business done under the contract was evidently the same as that embraced in the prior account. It was in fact a continuation of the business begun soon after the formation of the company. The prior account was carried forward into the statements made to the defendant, was never objected to by them, was treated by them as a part of the account rendered under the written contract; and we think that after being so treated, it is too late for the defendant to now object to an allowance of it under a bill brought for an accounting under the contract. That account became a part of the account under the contract. Under the circumstances, we should not hesitate to permit an amendment of the bill to include the prior account did we deem it necessary, which we do not.

II. The only other question made by the defendant is denying the orators’ right to charge the company with the personal property at the Malone tannery, amounting to 12, 518 25-100 dollars, on the 18th day of February, 1881. We do not think that the right to charge the tanning company this sum depends strictly upon the legality of the vote of the tanning company at the latter date to consolidate its business with that of the Malone tannery. That vote was not carried out by the orators taking stock in the company, or by a conveyance of the real estate to the company. Such purchase of real property in another state may, or may not, have been regular and strictly within the corporate powers of the company. But the acquisition of the personal property at the Malone Tannery was strictly within the authority of the orators under the contract of 13th October, 1874. They made all the purchases for the tannery, and we think that having taken the personal property under the form of a sale, the company having had the full benefit of it in every respect, that the orators should be allowed its value. The personal property at the Malone tannery was appraised by an agent of the orators and charged at the appraisal. The orators could not bind the company by an appraisal of their own. We wish to exclude the idea that this is impliedly sanctioned by the disposition of the case. We presume that the master allowed the actual cash value of the property; and no question is raised by the report in respect to the value of the property; We presume the action of the master was based upon legitimate evidence in that respect.

Decree affirmed, and cause remanded.