Smith v. Burton

3 Vt. 233 | Vt. | 1831

Hutchinson, C. J.,

after stating the case,pronounced the opinion of the Court. — The only question presented by the case before ns is, whether an action at law is the proper remedy, or whether the party having an interest must resort to the equity side of this Court. If the object of this suit was to recover any balance due among the partners, or the recovery depended upon there being a balance due from one partner to another, or to two of the three, from one of them, this action could not be supported. As applicable to such a case, the defendant’s authorities are conclusive.

It seems that these three partners understood this law, and carefully guarded against its embarrassing effects, in the collection of the notes that might be taken for the goods sold at auction. They agreed, that all the notes, given for the goods of their common debtor, Jedediah Freeman, should be made payable to bearer, and that John Smith, the plaintiff, should be the bearer, to collect for their common benefit; neither of them having any right to intermeddle, till all called upon Smith to share the avails. Should they disagree about dividing tine avails, when collected by Smith, that would call for the interference of a court of chancery. But there is no necessity of this in making these collections. This case is substantially as it would have been, if the notes had been made payable to John Smith by name. The parties, by their agreement, have made him their trustee, and given him the legal right to recover this money. The case cited from Cranch’s Reports, by the plaintiff’s counsel, is full in point. This stands a legal demand in favor of the plaintiff, and against the defendant 5 and, if the defendant chose to become a purchaser of the goods, and give such a note as other purchasers gave, he and they must alike pay the money into the hands of the plaintiff, ready to be divided according to the agreement of those concerned.

Smalley & Adams, for plaintiff. Hunt & Beardsley, for defendant.

The judgement of the county court is reversed, and a rew trial is granted.