Town of Huntington v. Chesmore, 60 Vt. 566

Town of Huntington v. Chesmore

60 Vt. 566 | Vt. | 1888

*569The opinion of the court was delivered by

Royce, Ch. J.

The writing given to the defendant by Sydney M. Gillett, under date of January 14, 1874, and the acceptance of it by the defendant, constituted an agreement between the parties by the terms of which Gillett was to pay, for and on account of the defendant, all debts due from the firm of Snyder, Chesmore & Shattuck. One of those debts was the note in suit. There was no novation of the parties to this note, and the defendant’s liability to pay it remained unaffected; but the defendant agreed with Gillett to pay the note for him ; and, as the referee finds, rested upon that agreement, and gave no further thought or attention to the note himself until his attention was called to it in 1882 by the payee, to whom he replied that it was Gillett’s business to see him clear of that debt.

The note was, by its terms, payablé on demand, with interest annually. When the defendant contracted with Gillett to pay the note for him, it cannot be said, therefore, that payment at a time certain, as upon the maturity of a note payable on a date or at the expiration of a time fixed by its terms, was contemplated. The defendant contracted with Gillett, for his own benefit and advantage, to .pay the note for him according to its tenor, which would be whenever payment was demanded by the payee, and must have authorized Gillett to do what he, by contract and agreement, bound him to do, so far as any authorization might be necessary from, and could be given, by the defendant. The payment of interest annually, until such time as the principal should be "paid, was incident to the debt, and a part of the contract evidencing it; so when the defendant bound Gillett to pay.this note for him, he bound him also to pay the interest on it, annually, until he discharged the principal, and must have authorized Gillett to the same extent as he bound him in respect of the' matter. .

The law of this State gives the effect of a new promise to the part payment of a debt, when made.by a person having-authority to make such payment, and without protestation *570against further liability. The annual interest on this note became a part of the debt evidenced by it, due at the end of each year; and it must be presumed that the defendant and Gillett, when they made their agreement, made it with the understanding that each payment of interest that might be made by Gillett under such agreement, for the defendant, would have the legal effect of a new promise to pay the debt. The defendant could not contract with Gillett to do a certain thing and then say that he did not authorize him to do it. If one contracts with another to discharge for him a certain duty or obligation in a certain way, or to execute for him an agreement which in itself provides the manner in which it shall be carried out, he must necessarily confer authority to act and represent which is commensurate with the obligation imposed and accepted. The defendant could not contract with Gillett to make for him these payments which the defendant was under a legal obligation to make himself, and by some mental reservation and without the consent of the payee, give to those payments a different legal effect, or withhold from them a legal effect, which they would have had if made by himself. This certainly must be true so long as Gillett followed strictly the terms of the contract which the defendant had bound him to carry out. Had the payments of interest been after maturity of the note, or otherwise at variance with the letter of its terms, a different question might be presented, and the qu’estion of the extent of Gillett’s agency or authority become matter for consideration. But so long as Gillett was doing for the defendant precisely what the defendant had bound him to do, carrying out the contract he had assumed for the defendant precisely according to its terms, his act must be regarded as the act of the defendant, and its legal consequences the same as if done by the defendant himself. In the language of Smith v. Ryan, 66 N. Y. 352, cited by the defendant’s counsel, Gillett had authority, under his agreement with the defendant, ‘ ‘ to perform for the party the very act which is to be the evidence of a new promise.”

The judgment is affirmed.