Penniman and Parmelee vs. Lyman Patchin, 6 Vt. 325

The opinion of the court was pronounced by Williams, Ch. J. — Of some or most of the questions which appear in this case, it is sufficient to say, that they were examined and decided at the last term, arid ane no longer open for discussion in this case. Some other objections have been urged against the award-which was made between the plaintiffs and Brownell, as that it did not follow the submission. But it is difficult to see of what consequence this is to the defendant. This was a question which the parties to the award might litigate if they were so disposed.

But if the plaintiffs were willing to accept of it, and Brownell did accede to it and pay the same, this defendant cannot set them quarrelling upon á subject on which they are disposed to be at peace. 'The same may be said of the objection founded pn the supposed revocation of the authority of Church. If the plaintiffs were willing to adopt the award as settling the claims or controversies between thém and Brownell, the defendant has no right to object, nor is he injured by this act.

If the award was void and had been repudiated by the plaintiffs^ as the defendant had received the amount of Brownell, he must have repaid it to him, and the plaintiff could have called on Brownell. But as the plaintiffs were willing to abide by the award, and adopt the act of Church in this particular as their own, their controversy with Brownell was adjusted, and they were entitled to receive their money of Brownell, or of any one who had received it of Brownell under an authority not derived from them. The' testimony of Blackmer E.

Brownell, which was rejected, was only as to a conversation between Brownell and the defendant, Patchin. It is claimed as a part of the res gesta, but of what transaction affecting the plaintiff, I cannot perceive. It was clearly res inter alios acta, in no way affecting the plaintiffs. The defendant is charged as having received the amount of an award assigned to him by a person not authorized. This appears in writing under the hand of Church the attorney, who.altempted to assign the same, and the receipt of the defendant affixed thereto.

The effect of this could not be varied or altered- by any conversation between the defendant and Brownell. What he said to Brownell, or what inducements he held out to him, cannot change the character in which he actually received the money, or show that it was not by virtue of an assignment of Church, who' had no authority to make the same. The judgment of the county court is therefore affirmed,