Morse v. Powers

45 Vt. 300 | Vt. | 1873

The opinion of the court was delivered by

Redfield, J.

This action is book account. The auditor’s report states that the plaintiff’s son, James Morse, Jr., had charge and conducted the business of the plaintiff’s store of 'goods, in Franklin, near Canada line. That there was no special agreement as to compensation for the son’s services. But it was “agreed that James, the son, should attend to the business of the store, and should have a support for himself and family out of the business.” Both the plaintiff and the son took goods as they wanted, from the store, for family use, and no charges were made or account kept of them. The auditor further reports that the goods were delivered by James, Jr., in payment of defendant’s services as physician in attending upon the son’s wife, and were delivered from time to time, as the services accrued; and when James, Jr. left his father’s service, he cancelled the account, by crediting on the books the defendant’s account for these professional services. The auditor finds defendant’s services necessary.

There is no doubt that the agreement at'the time the goods were delivered to the defendant, that they were received in payment of defendant’s services, was binding, as between the parties to the contract. The only question would seem to be whether James Morse, Jr. was authorized to deliver the goods in payment of his own debts.

The plaintiff agreed that the son should have “ support for himself and family, from the business” ; and he was in the habit of appropriating the goods for that purpose. Proper medical treatment to the sick, is deemed, by usage, as necessary as the provision of bread to the hungry. And, we think, the facts reported authorized the son to clothe and feed his family from the avails of the store, and, by the same means, procure “ necessary ” medical attendance to those of them that were sick.

II. The auditor finds that the defendant relied on the plaintiff’s assent to the arrangement made between James, Jr. and the defendant. The report does not state that the plaintiff expressly assented to the arrangement, but that defendant’s reliance was based on certain specific facts reported. And it seems that plaintiff was aware that the son was delivering goods to the defendant, while the services were being rendered ; that he knew James had no other means with which to pay for those services, and that he told the defendant that “his bill would have to come out of him, but he did not care about the bill if it did the woman any good.” When the auditor states that the defendant relied on the plaintiff’s assent, “based” on these facts, the natural construction of the language used would be, that the plaintiff expressly assented to the arrangement. They were certainly very satisfactory proof of such assent. But however this may be, we are satisfied that the agency of James, Jr., authorized him to make the arrangement with the defendant. The judgment of the county court is therefore reversed, and judgment on the report that the defendant recover of the plaintiff forty-nine dollars and thirty-six cents, and interest from the 24th of April, 1872.