Tillotson v. McCrillis

11 Vt. 477 | Vt. | 1839

Collamer, J.

The steers, out of which this controversy arose, were undoubtely the property of the plaintiff. That a father may give to his infant son his time, who thereupon will be entitled to the fruit of his earnings, has been fully decided in this state. There can be no reason why he may not give him a part of that time. In this case, the plaintiff’s father gave the plaintiff his time, and he earned these steers. This was not attempted to be disproved. The showing that for earnings of an after date, the plaintiff’s father took pay, does not tend to disprove the fact, of the plaintiff’s having his own earnings the season he procured the steers. The plaintiff put the steers into the hands of his uncle, Sargeant, thinking that his father’s creditors would be less likely to attach them. In all this, there was no fraud, and all this was known to the defendant. The jury have found that the defendant received the money for the plaintiff, as his agent. He, then, is not permitted to say that it was not the plaintiff’s property, and even if he were, it is clear that it was the plaintiff’s property.

A man cannot claim the privileges and rights of a character which he refuses to sustain, and the responsibilities of which he repudiates. When a tenant disclaims that relationship, and, assuming a belligerent attitude to his landlord, claims to hold in his own right, he is not entitled to notice to quit. In this case, the defendant was claiming the money in his own right, insisting that he so received it. He utterly declined being considered the plaintiff’s agent, and therefore, had no right to insist on the privileges of an agent. The court, therefore, correctly charged the jury, that if the defendant received the money as the agent of the plaintiff, their verdict must be against the defendant, even without any demand of payment before suit.

It is true, that Sargeant was the plaintiff’s agent, with whom he left the steers, and by whose consent the defendant received the money therefor, for the plaintiff. It was competent for the defendant to show what this agent did or.said in the execution of his agency. He might have proved by him, or others, that he directed him what to do in relation to the steers, or the suit, or money therefor. But the subsequent concessions of an agent of what he said or did, in the performance of his agency, are never admissible against the principal, except to discredit the agent when he has testified, and then only under the same restrictions as other witnesses are to be discredited, by showing that they have told a different story from that told on the stand.

They must first be asked in relation to their having so stated.

Judgment affirmed.