29 Vt. 165 | Vt. | 1857
The opinion of the court was delivered by
The note surrendered being in every respect the same which the auditor reports was given by Platt, and no question being made in regard to its genuineness, and there being no pretense that he executed more than one such note, we must conclude it is the identical note. This will remove all question upon that ground.
But if the note had not been in fact surrendered, it would be no objection to the recovery so long as it remained in the custody or power of the party. But if it were negotiable and had been negotiated, (which the report does not show in the present case, and which we could not presume,) it must be surrendered before the party is entitled to execution upon his judgment. •
This receipt is not a general receipt in payment, and if it had been it might, as between the parties, have been explained by oral evidence, and its operation wholly defeated by showing in what the payment was in fact made, and that it had failed of being productive.
But in that case the argument made here might properly arise if the receipt had been shown to the defendant, and he had been so induced to act upon it as to have suffered loss. But here the plaintiffs seem to have guarded against such a result with great circumspection, by stating upon the face of the receipt the nature of the payment. ^
We said at the argument we could not regard the sales by the plaintiffs to the defendant, being a town agent, as any violation of the statute. We are confirmed in that view. The authority to the defendant to sell must imply an authority to buy. If not, he must have been expected to manufacture what he sold, which
Judgment affirmed.