Phelps, Dodge & Co. v. C. B. Conant & Co.

30 Vt. 277 | Vt. | 1858

The opinion of the court was delivered by

Redfield, Ch. J.

I. The first question is, whether the presiding judge of the county court, after his term of office expires, can be allowed to possess any authority to amend the bill of exceptions. We think it can not be admitted that he possesses any such authority. The statute vests the presiding judge with the power of the court, in allowing and placing exceptions upon the record. And from this he has been allowed an incidental power to amend the exceptions according to the facts, up to the time of trial in this court. The practice is a loose one, and attended often with embarrassments. But it seems the only practicable one with us. We do not make the judge’s minutes the basis of the trial in banc, as is done in the English courts in revising trials nisi prius. But here a formal bill of exceptions is placed upon the record, the same as when a writ of error is expected to be brought. Before this is done the exceptions should be fully settled on hearing. But the haste with which business is transacted with us often precludes this, and the exceptions have to be revised after they are filed, very often. But we think this should not be allowed to be done by one who has ceased to sustain the duties and responsibilties of the office under which he tried the case. He is not under any official oath or responsi bility, and has no power or control over the records of the county court. Taking the case, then, as it stood in the printed copy, without the manuscript amendments, there are many of the questions with which we have no difficulty.

I. The specification seems to have been sufficient, no objection being made at the time the testimony was offered and received, it became too late to object on the ground of variance between the testimony and the specification, the claim being substantially of the character described.

II. We entertain no doubt that if the plaintiffs were induced to part with tlicir property, by such fraudulent misrepresentations on the part of the purchascz-s and of the defendants, as will entitle them to rescind the sale and recover the property, and the property has cozne into the.defendants’ hands, and been converted into money, the plaintiffs may waive the tort, and maintain an action for the money. This is a familiar and elementary principle in the law of pleadings and procedure.

How far it would embarz'ass the recovery if Wheeler & Company acted in good faith, but the defendants were guilty of fraud, it is not necessary to consider here. The general rule undoubtedly is that the purchaser must be guilty of intentional fraud in order to entitle the seller to rescind the sale. Whether there is anything in the case which will opez’ate as an estoppel, either upon Wheeler & Co. or the defendants, in regard to the fraudulent purpose of Wheeler & Co. at the time of the purchase, we do not know.

III. The defendants having received Wheeler & Co.’s property, to convert into money, under a promise to pay the plaintiffs’ debt, with those of certain other creditors of Wheeler & Co., and which they had converted into money, we regard the law as well settled, that the plaintiffs may sue in their own names for the money. That is distinctly recognized in Crampton v. Ballard, 10 Vt. 251, and this point of the decision is quoted by Chancellor Kent in his commentaries, without question. The other cases referred to in the Vermont Reports adopt the same view.

It is true, as held in Crampton v. Ballard, that when the contract is special, or to the extent that it is special, it can only be sued in the name of the party with whom it is made, and from whom the consideration moves. But that does not affect the case, after the money is realized, and it becomes absolutely the money of the plaintiff in the defendant’s hands. Then the law implies a promise directly from the defendant to the plaintiff.

IV. In regard to the testimony of Wallace, that the defendants agreed to pay his debt against Smith, one of the firm of Wheeler & Co., under very similar circumstances with those claimed to be proved in this case, on the part of the plaintiffs, it seem io us it had no legal tendency to prove the plaintiffs’ case. It a matter wholly inter alios. There was no legal connection between the two cases. It did not follow by any means, that because the circumstances of the two cases were similar or identical even, that the defendants, by assuming one debt, were bound to assume the other. Nor is there any legal probability that he would pay one, because he agreed to pay the other. We are apt to think because the cases are alike, that the one helps prove the others. But they have no more legal connection than the giving a note to one man has with proving that the same party also gave his note to another. If the man bought on credit once, it is more probable perhaps that he will again, but one such case could not be shown to establish the others, for the reason that there is no necessary connection between them. To have one fact prove another, there must be a necessary or probable connection between the two.

V. We think, too, that two of the propositions put to the jury, the second and third, are defective without the amendment, and probably with it. Upon the theory upon which the case is argued, there is no doubt that a case of fraud, which will make the defendants liable in this form of action, might be established. If the promise to accept Wheeler & Co.’s drafts was made without any purpose at the time it was made to fulfil it, and this was only a device to induce the plaintiffs to sell Wheeler & Co., on credit, with a view to get possession of the goods, and thus defraud the plaintiffs of them, and this was thus accomplished, and the goods converted into money by the defendants, and Wheeler & Co. were cognizant of this fraud, and knowingly aiding in its accomplishment, no doubt the defendants are liable in this action. But no such facts were required to be found by the jury. Nor is there any intimation in the charge that it would be necessary to find all these facts, to charge the defendants in that view of the case.

The other propositions in the charge are not very full, but perhaps there is no fatal defect in them. But these two, as tending to show an original fraud in obtaining the goods, seem to be deficient in all the main propositions requisite to be established.

The facts alluded to in these propositions have a decided tendency to show a binding agreement to accept Wheeler & Co.’s drafts, if such a contract were binding without writing, but no such issue existed in the case.

Judgment reversed and case remanded.