This is an action of general assumpsit for logs and lumber sold and delivered. Plea, general issue with notice and payment. The notice is to the effect that a suit now pending in favor of the same plaintiffs against the same defendant is for the same cause of action.
Plaintiffs claimed that defendant purchased the logs and lumber mentioned in their specifications, through one Lang as Ms agent, duly authorized by the defendant to make such purchases. Defendant claimed that Ms relation to Lang was only that of a commission merchant, selling the product of Lang’s mill, taking security on the lumber for advancements of cash and commissions, and that he never authorized Lang to pledge his credit for logs or hnnber; and that Lang was only authorized to act as his agent in making cash purchases of logs or lumber. The defendant claimed that the evidence in the case tended only to show that the logs and lumber in question were sold by the plaintiffs to Lang, individually, and not to the defendant through him as agent, and that no credit was ever extended by the plaintiffs to either Lang or the defendant for the same; that the sale was a cash transaction, or lien notes to be given on such part as was not paid for on delivery, and that the business between Lang and the plaintiffs was transacted in accordance ’ with that understanding, which existed between Lang and the defendant. The defendant lived at Palmer, Massachusetts; the plaintiffs lived and were doing business at Barton, Vermont, and Lang at South Barton, during the time covered by these transactions. There was no claim or evidence that the defendant had ever personally promised the plaintiffs, or their agent, to pay for the logs or lumber in question, or that he ever became obligated to pay for the same, except through Lang as his agent, unless the fact that he had substantially all the lumber sent to him, or his order, and the proceeds of all the lumber sold in his name, has a tendency to establish that fact. The plaintiffs never presented a bill or statement of their account to the defendant, but they called on Lang from time to time for payments on their account, claiming he was defendant’s agent, and Lang assured them when
April 7, 1902, the defendant and Lang entered into a written agreement, by which Lang agreed to ship to the order of the defendant all the lumber cut out of that season’s stock of logs, and all the logs in and about Lang’s mill, and the defendant agreed to market said lumber, upon commission, and account to Lang for the net proceeds, and apply-the same in payment of advancements with interest thereon, to advance Lang $4,500 for one Lawrence’s interest in Lang’s logs and lumber, and to advance Lang $140 per week, for twelve weeks. Lawrence then held a lease of Lang’s mill and premises at South Barton,- and was to assign the lease to the defendant. On the same day and as a part of the transaction Lang gave the defendant a chattel mortgage of all his logs and lumber at or near his mill, to secure the defendant for the money he had advanced or was to advance to Lang. April 15, 1902, Lawrence assigned his lease to the defendant, upon being paid the amount due him, for money he had paid toward the logs. September 30, 1902, defendant and Lang made another written agreement similar to the one of April 7th, but covering the logs to be got out in the coming season, and providing that the logs and lumber should be and remain the property of the defendant until he should be fully paid for all money advanced by him. December 3, 1903, Lang gave the defendant a quit-claim deed of his mill and premises at South Barton and a chattel mortgage of all the goods in his store. December 17, 1903, Lang turned over to the defendant the stock of goods he had at South Barton. Defendant took possession of the property deeded and turned over to him in December, and also took possession of the books of account which Lang had kept in his business, which were placed in the office of W. R. Aldrich of Barton.
•January 2, 1904, the defendant wrote a letter to Mr. Aldrich, enclosing a letter from Lang, and stating in substance that he had written Lang that he did not think there would be any objection to his going to Mr. Aldrich’s office and looking at the books, if for any reason he desired to look at them, and that he thought it best to tell Lang if there was anything due from any of the accounts on the books, that defendant claimed the amounts due. Plaintiffs offered this letter .in evidence, and
While defendant’s bookkeeper was on the stand as a witness, testifying as to the defendant’s books of account, showing his deal with Lang, the plaintiff offered in evidence the heading-of a certain page of ah account book as showing the way the account was headed and the manner of making entries, on the ground that the book did not show a debt and credit account, but was headed “Statement of ft. B. Lang given July 1, 1903.” Counsel for defendant stated he had no objection, and wanted it in the case. Plaintiffs’ counsel expressly limited his offer to the purpose above stated, and it was admitted by the court for the purpose named. After the admission of the heading for that purpose counsel for defendant cross-examined the witness, and called his attention to a certain item in the statement, and asked him whether that item appeared in any manner on the book from which he made the copy of the statement, to which the witness answered in the negative, and then asked bim, “Where did you get that item on this statement?” Without objection by counsel for plaintiffs the court said, “That item is excluded for the present, it is not cross-examination,” to which ruling the defendant asked, and was allowed, an exception. The admission of the heading having been limited to one purpose, that of showing the manner of keeping the accounts by the defendant,
When Lang was on the stand as a witness for plaintiffs, he was asked in his direct examination what took place between him and the defendant at the time he transferred the mill property to the defendant, with relation to the plaintiffs’ account then due, and answered that the defendant agreed to take care of the lien notes previously given by Lang to them, secured upon the lumber, and was also asked what took place between him and defendant December 17, 1903, when he transferred his' stock of goods in the store to defendant, and he answered in substance that defendant agreed the same with reference to the lien notes that he did December 3 and 4 with reference to the account, to take care of the Taplin & Rowell lien notes, and it appearing that Lang then told the defendant that the balance due Taplin and Rowell was about $1,540. He was asked whether defendant then agreed to pay that amount if it was found to be correct, and he answered that he did, and upon the witness stating that upon two occasions in December he had turned over to the' defendant every dollar of his property, 'he was allowed to state that in consideration of his turning over to him all his property, the defendant said he would pay the debt due the plaintiffs for lumber which Lang had bought of them, as they claimed for the defendant. All this testimony was received subject to objection and exception. The objection was that it was immaterial. It was material as showing the relations between Lang and the defendant. It had a tendency to show that defendant was then assuming the indebtedness contracted by Lang to the plaintiffs,
In the same examination of Lang he testified that he had a looking over with the bookkeeper of plaintiffs at some time between December 3 and 17, 1903, and was then allowed to testify subject to defendant’s objection and exception, that he informed her of what the defendant had agreed to do in regard to the payment of the Lang notes. The defendant testified that he never agreed to pay the debt to the plaintiffs, but admitted that he drew a check for $526.48 December 3, 1903, the amount which Lang then said defendant owed the plaintiffs. It was objected by defendant that the evidence did not tend to show that he ever instructed Lang to communicate to anyone the alleged agreement on defendant’s part to pay the Lang notes.
When this conversation between Lang and plaintiff’s bookkeeper took place, nothing was being done in carrying on any of the business in which it was claimed he had been acting for the defendant. The exceptions state he was looking over with the bookkeeper but it does not appear that his statement had any connection with that. It was a statement of an agreement of the defendant, previously made, to pay the plaintiff. While Lang’s testimony as to this agreement, made while the transaction between him and the defendant was going on, and relating to that transaction, was admissible, upon the grounds previously stated, his relation to the bookkeeper of what the defendant had said, was mereíy a recital of a past conversation, and in no way connected with any business or transaction then being carried
It appeared that the defendant brought suit in trover against one Parker, a deputy sheriff, to recover for lumber sold by Parker upon two of the lien notes, given by Lang to plaintiffs, upon the ground that none of the lumber sold by Parker was included in the lien notes. The case was taken to the Supreme Court upon exceptions (78 Vt. 73, 62 S. E. 19). The defendant in that case was indemnified by Taplin & Rowell for taking the lumber and they assumed the defence of the case. The defendant in this case offered in evidence a part of the exceptions in that case, in which it was stated, in substance, that the uneontradicted evidence of the defendant in that case tended to show that Taplin & Rowell sold to Lang in 1903 a large amount of sawed lumber, and that it was all sold on condition that Lang was to give a lien note for it as soon as counted and before it was used and the title was not to pass until it was paid for, and defendant offered to show that attorneys for the plaintiffs then acting for them defending that suit wrote that paragraph in the exceptions. Plaintiffs objected to the admission of this
A petition for a new trial was brought by the defendant in the same casé, which contained a'statement substantially like that in the exceptions as to what appeared on trial in regard to the sale of lumber and that it was to remain the property of Taplin & Rowell until paid for. This was offered in evidence by the defendant and properly excluded, for the reasons before given as to the other evidence offered.
At the close of all the evidence the defendant moved the court to direct a verdict for the defendant, upon the ground, first that the plaintiffs’ declaration is in the common counts in assumpsit, and their uncontradieted evidence is that the contract between them and Lang was that they were to have cash or lien
It is generally true that notes given by the debtor for the amount due from him on account, are prima facie payment of the account. In this case a litigated question is, who is the debtor; to whom was the lumber sold by the plaintiffs? Did they sell it to Lang individually, or to the defendant, through Lang as his agent? For the settlement of the matters of fact, involved in these questions, oral testimony was offered, and properly received. Although the sales were made by the plaintiffs to Lang, they claimed they were made to him as agent of the defendant, and although he gave lien notes and signed them with his own .name, that these notes were given by him in behalf of the defendant for the sole purpose of preserving the rights of the plaintiffs, and retaining their title, until they should
The, defendant requested the court to charge the jury; first, that if they found that plaintiffs caused the two lien notes already mentioned, to be placed in the hands of an officer, with instructions to realize upon that part of the lumber therein specified, that act constituted an admission by them that they then understood and claimed that said two notes represented a
The defendant also requested the court to charge in substance, that the fact that the plaintiffs caused the payments toward the lumber to be indorsed on the lien notes, as of the dates when the payments were made is evidence tending to show that plaintiffs had not before said indorsements were made, made any other application of said payments; also that the making such indorsements tended to show that plaintiffs understood said payments were not made on account; also that the making of such indorsements is an admission that the payments were not made on account. It appeared that the payments were credited in the account when received, and were indorsed on the notes, after the commencement of this suit as of the date when received. The evidence as to this was uncontradicted, unless by the circumstances of the date of indorsement appearing on the notes, being different from the date when actually made. Here again, the jury, if these requests had been complied with, would have been obliged to disregard the plaintiffs’ theory, and evidence, in respect of the note transaction.
The method which the plaintiffs claim was adopted to keep their lien good upon the property, required the giving of lien notes, not as evidence of the debt, but as being necessary to preserve their security. No question was made as to the correctness of the items as credited and indorsed by plaintiffs, nor that there was but one payment of each item credited. If the jury found the plaintiffs’ claim well founded they might say that the credits upon the account and the indorsements upon the notes were consistent with their claim, the indorsements being made for the purpose of having the notes show the amount due, if the lien should be enforced. The amount due would have to be shown in some way, and the indorsements would enable them to compute the balance. Keeping account of these payments in these two ways, and as they claim- for the reasons stated, the court could not tell the jury as matter of law, that the mere fact of indorsement upon the notes would tend to show that plaintiffs had not before credited the same amounts in the account, especially as the exceptions state it appeared they were credited when received; nor that such indorsement would tend to show that they understood said payments were
The way the account was kept, the giving of the notes and why they were given, the credits and indorsements and their dates were all matters of evidence and before the jury, and they had the right to 'consider all the facts and circumstances, in arriving at a conclusion, in regard to the payments, and where they should apply, and where they did apply, and the force and effect of their application, if any, as against the plaintiffs. All this bears upon the giving of the notes, and the purpose of their .execution, and the court could not be required to select one piece of evidence and give it prominence in the manner indicated by the requests and disregard all other testimony on that subject. All the transactions and the conduct of the parties in relation to them, were before the jury, and were proper subjects of consideration by them.
The defendant also requested the court to charge the jury, that although the contract in respect of the logs and lumber was made with Lang as agent of the defendant, yet if that contract was that the sale was to be a cash transaction, and that lien notes were to be given for the lumber or logs not paid for on delivery at the Lang mill, and that plaintiffs were to retain the property in the logs and lumber till paid for, and the business was transacted in accordance with this contract, then the plaintiffs cannot recover for the logs and lumber in this suit; and also excepted to the failure of the court to instruct the jury as to the defendant’s claim that there was nothing to pay, on his theory, nothing due which was proper matter of book account. This request assumes that the contract was made with Lang as agent; that the sale was for cash and lien notes to be given for what was not paid for on delivery, plaintiffs to retain title until paid for.
The method adopted between the plaintiffs and Lang, for retaining title by the plaintiffs, was by Lang’s giving lien notes to hold what was not paid for. Although it was called a cash sale, there was a condition that lien notes should be given for what had not been paid for. If the defendant got possession of lumber which his agent Lang had purchased, but was not paid for, by either, he would be liable to plaintiffs for the balance due for it. Again recurring to the theory and evidence of the plaintiffs, if the jury should find the plaintiffs’ claim correct, then the plaintiffs properly charged all lumber to defendant and credited
Several letters written by the defendant to Lang were introduced in evidence by the plaintiffs, and among them one dated January 24, 1903, reading as follows: “Replying to your favor of the 19th inst. which arrived during my absence from home will say that we do not care to advance money on logs until they are delivered and you can certify to the number of feet there are of them. This is the only way to do business and know what we are doing, must have some system to our business or we shall not know where we are.” And the other dated January 27, 1903, reading: “Replying to your favor of the 26th inst. will say that we do not care to pay for logs until they have arrived at the mill-yard. When they are delivered at the mill and scaled so that you know how many feet you have you can send me a schedule of the number of feet of each kind and the amount per thousand that you are to pay and we will then attend to sending you a check to pay for them. As for advancing money on logs before they arrive at the mill-yard and are scaled so that we-know what we are paying for, we do not care to do it, and if the parties that you buy of cannot wait until the logs are delivered and scaled it is better not to buy of them. We are not goirg'Aq advance money haphazard and shall insist upon the
‘41 instruct you that a fair construction and legal construction of those two letters is that so far as logs were concerned which Lang was authorized to buy on Marcy’s credit, to the extent, at least, of having those logs delivered in that mill-yard, scaled, and the measure or scale sent to Mr. Marcy in Palmer, and time for him to get a cheek back, etc., that would not be a cash sale. It would, to a certain extent, be a sale on credit.” The defendant excepted to this part of the charge, on the ground that the submission to the jury of the question whether the defendant authorized Lang to purchase logs on his credit was upon those two letters alone, disregarding all the other evidence including conversations and correspondence between Lang and the parties, the manner of carrying on the business and all the circumstances, and that even if the construction of the letters may have been for the court, they should have been submitted to the jury, with the construction given them by the court together with all the other evidence in the case. There was considerable correspondence between the defendant and Lang, and several other letters from the defendant relating to the business appear in the exceptions. The ease shows that defendant claimed that his relation to Lang was only that of a commission merchant selling the product of Lang’s mill, and taking security for advancements and commissions, and that he never authorized Lang- to pledge his credit for logs and lumber, and that his evidence tended to show this; and he claimed that no evidence in the ease tended to show that he had authorized Lang to pledge his credit for the purchase of either logs or lumber, and that the most that any evidence in the case tended to show, was that Lang was his agent no further than to make cash purchases of logs or lumber, and that he kept his account with Lang and rendered him statements from time to time showing that this was the way he understood the relations between them. Thus the two parties differed widely in their claims and in their evidence as to this particular question. The two letters related entirely to logs: In both, the defendant specifically objected to advancing money for logs, and in the first he stated when he •would pay for them, that is, as soon as he knew the amount. The understanding was that the title to the logs shq'fild remain in the vendor until paid for. The plaintiffs’ testimony was,
In White v. Lumiere et al., 79 Vt. 206, 64 Atl. 1121, 6 L. R. A. 807, it was said that, “while it is true that generally the construction of written instruments is a question for the court, it is likewise true that where the case turns upon the proper conclusions to be drawn from a series of letters taken in connection with other facts and circumstances, it is one which may properly be referred to a jury. ’ ’ This was according to the law as laid down in Rankin v. Fidelity Insurance Co., 189 U. S. 242, 23 Sup. Ct. 553, 47 L. Ed. 792, and in West v. Smith, 101 U. S. 263, 25 L. Ed. 809. As the ultimate fact to be determined was the authority of Lang to pledge the defendant’s credit for logs, the defendant under the circumstances had the right to have the jury consider all the evidence bearing on that subject. The general rule undoubtedly is, that the construction of all written (locuments is a question of law for the court, and when a contract is sought to be made out from such documents alone, it is for the court to ascertain and determine its construction whether the documents are many or few. But where the evidence in the ease does not depend altogether upon written instruments, but upon other matters of fact, it is a question for the jury to determine what was the contract between the parties. Roberts & Co. v. Bonaparte, 73 Md. 191, 20 Atl. 918, 10 L. R. A. 689; Bolchow v. Seymour, 17 Com. Bench U. S. 107; Moore v.
In Taylor on Evidence, Sec. 36, it is said, “where a contract has to be made out partly by letters and partly by parol evidence the jury must deal with the whole question. ” In 1 Story on Contracts, See. 818, “if a contract is to be made out partly by written documents and partly by oral evidence the whole becomes a question for the jury.”
The defendant also excepted to that part of the charge in respect to the sixth special verdict, which was, “was Lang authorized to purchase lumber on Marcy’s credit?” The court said, £ £ That depends upon whether you find by a fair balance of the evidence that Lang was authorized to buy lumber as Marcy’s agent, the same as logs. If you say that he was authorized by Marcy to buy lumber for him the same as he was to buy logs, then this follows the same as it does with logs. In other words he had a right to buy it on the same credit with Marcy as far as length of time was concerned, because otherwise it would not be buying the same as logs. So' you will answer that question yes or no, as you find it.” The authority as to the purchase of lumber, if any was given, was by parol not being mentioned in the letters. The instructions assume that the authority to purchase logs on credit was given by these two letters, alone, and then place the purchase of lumber on credit, on the same basis. Of course if the charge was erroneous in respect of logs, the same is true as to lumber for it is placed on the same ground, and makes their finding depend upon Lang’s authority to buy logs. The charge does not clearly discriminate between logs and lumber. Other exceptions were taken which we do not deem it necessary to consider, as the same questions are not likely, to arise in another trial.
Judgment reversed and cause remanded.