Hurlbut & Hodges v. Jonas G. Chittenden, 26 Vt. 52

The opinion of the court was delivered by Bennett, J. No question is made in relation to the auditors report, except as to item 15 in the plaintiffs’ account. By that charge, the plaintiffs seek to recover a portion of their debt, which was originally against Bronson.

It was agreed between the three parties, that Bronson should superintend the building of a saw mill for the defendant, and that he should pay to the plaintiffs the amount of Bronson’s earnings, to he applied on the plaintiffs’ account against him; and his wages were estimated to he at the rate of $1 50 per day, which the defendant was to pay the plaintiffs. There was a provision in the contract between defendant and Bronson, that if the mill did not do a good business, the defendant need not pay anything. The auditor reports, that the mill was good for nothing, and Bronson’s labor a damage to the defendant.

But this provision in the contract was not communicated to the plaintiffs, and they supposed the $1 50 per day was absolutely payable. It is perfectly clear, that upon the facts reported, Bronson had no claim against the defendant, which he could enforce; and the question is, can the plaintiffs enforce payment where nothing was due to Bronson ? It is quite clear, that when the agreement was made, by which the defendant was to make payment of Bronson’s wages to the plaintiffs, it was upon a valid consideration, which was to pass from Bronson to the defendant, and in the end it turned out this consideration failed.

We can not see upon what ground the plaintiffs can recover this item. The defendant, as it turned out, received no value for his promise to the plaintiffs; and the plaintiffs have parted with nothing. Their debt against Bronson had been previously contracted, and the auditor does not find that the plaintiffs at any time agreed to forego any right against Bronson. If such had been the fact, the case would have merited a different consideration.

The orders were drawn by Bronson upon the defendant, in favor of the plaintiffs, from week to week, to avoid the trustee process ; and the defendant agreed to accept them, upon the ground that he was only to be bound to the amount of his indebtedness to Bronson, and when the orders were looked up and charged over, it was with the same understanding on the part of the defendant. The fact, that the plaintiffs supposed Bronson was at all events, to have $1 50 per day, can make no difference, as it does not appear that they, relying upon this, parted with any right as against Bronson.

The failure of consideration doubtless was unexpected to both plaintiffs and defendant; but we see no good reason why the defendant can not avail himself of it. The judgment of the County Court is reversed; and judgment for defendant for the sum reported due him after deducting the 15th item from the plaintiffs’ account.