Jonah Brooks, Jr. & Co. v. William Jewell, 14 Vt. 470

The opinion of the court was delivered by Williams, Ch J. The question before us is, whether the report of the auditor should have been accepted on the facts as found and stated by him. The charge was for one thousand cedar posts at $30.00. Two objections are raised by the plaintiffs against a recovery in favor of Jewell; — first, that the posts were contracted for and delivered to Chapin K. Brooks, one of the firm of the plaintiffs.

On this it is sufficient to remark, that it was a question of fact for the auditor to decide whether the charge was properly against Jonah Brooks, Jr. & Co. or against Chapin alone, and he has found against the firm. Moreover, from the facts as detailed, there is no question, but that the conclusion to which he arrived was correct. The second objection is, that the posts were delivered in payment of the note in suit, and therefore can afford no ground for a recovery in an action on book, and the cases of Slasson v. Davis, 1 Aikens, 73, and Stevens v. Tuttle, 3 Vt.

R. 19, relied are on in support of this objection. It is true that where goods or money are delivered or services performed in payment of a debt, they cannot be the subjects of an action, but must be applied in payment, and if a suit is brought on the original debt, the party paying must see that the application is made. That, which is intended to extinguish a demand and prevent a suit, is not to be made the subject and foundation of an original action or suit, to recover therefor. Neither can any one, on a plea in offset, recover for any demand for which he could not recover in an original action.

But where an account was contracted the parties must have contemplated that charges therefor should be made on book, and which must be subject to a future adjustment between them, though they may have intended the amount should, in the end, be applied in payment of an existing debt. An action on book, or a plea in offset may be maintained, to recover therefor, if the creditor refuses either to adjust the account or apply the balance in payment. This was decided in the case of Strong v. McConnel, 10 Vt. R. 231. The case under consideration is within the principle decided in the latter casé.

Indeed, from the facts reported by the auditor, it would appear rather that the note, by the agreement of the parties, was to be received by the defendant in payment of his account; as the account was to be for a much larger sum than the note. The auditor and the county court decided correctly in allowing the defendant, Jewell, to recover for the amount of the cedar posts. The auditor has deducted from the account of Jewell another note of $13.25 given in February, 1835. From the facts stated in the report, this was correct, as the cedar posts were to be paid for in goods out of the store.

This note was given for such goods after a part of the posts had been delivered but'before the whole were delivered. The balance due for the posts, which was to be paid in goods out of the store of the plaintiffs, was not paid, as they stopped trading in June, 1835, only a few months after the posts were delivered, and they could not, according to the terms of the contract, pay in the manner agreed on, and there was no unreasonable delay on the part of the defendant in not calling for the goods, before that time.

The judgment of the county court, therefore, in favor of the defendant, for the sum which the plaintiff's were in arrear to him, is affirmed.