Ezra Wilkins vs. Joel Stevens, 8 Vt. 214

The opinion of the court was delivered by Redfield, J. If there be any one subject of more just regret than all others, in relation to the action of book account, it is the protracted litigation about pitiful, small sums, which is constantly growing out of the action. We would be glad so far to define the limits of the action, as to obviate the necessity of so much discussion of that topic. But among such endless variety of cases, as are constantly presenting themselves before us, confusion rather than activity is to be feared.

The present case, in principle, is almost identical with that of Blish and Richmond vs. Granger, 6 Vt. R. 340. But it is not the same case, and the defendant insists, cannot be brought within the known limits of the action of book account. Formerly great diversity of opinion among the profession, and not a little upon the bench, prevailed in relation to the policy of restricting or extend-in the boundaries of this action. And the mode of trial, which obtains by statute in that action, is so different from proceedings in trials at common law, that there is very just grounds for such contrariety of opinion.

Some, indeed, of eminent attainments injudi-cial science and learning, prefer extending the same mode of trial to all action; while others, of no less pretensions, would wish to abolish the action entirely. As in other cases, in medio tutissime ibis. It is first objected, here has been no delivery of the thirty-one set of hubs, still remaining at the place specified in the contract; but that, at most, it cannot amount to more than a tender and refusal. If the property had only been tendered at the time and place, and not accepted, this action wloud not lie — Reed vs. Barlow, 1 Aik. 145.

But the defendant, having here proceeded to use most of the hubs without objection, and having paid and offered to pay the full price, must be considered as having accepted the hubs, and waived all objection on account of any apparent defect therein. What remedy he might have for secret or latent defects, known or not known to the plaintiff, but unknown to defendant, it is not necessary to determine.

But an acquiescence, of the character shown in this case, should preclude him from now refusing the hubs, or claiming damages or a reduction in price, on account of the size or shape of the hubs, which must have been known to defendant from the first. This is in accordance with well established principles of common law, both in relation to labor and goods. — 2 Starkie Ev. 640, 641, 642, 643, 644 — Everett vs. Gray, 1 Mass. R. 101 — Fisher vs. Sumada, 1 Camp. 190— Grimaldi vs. White, 4 Esp. cases Nisi Prius, 95.

It is further objected, that the contract in this case precludes the right to charge the articles on book. But the contract being in writing clearly makes no difference in the remedy, whether at common law or in this form of action. The law attaches no higher importance to a contract in writing, in relation to the extent or the character of the obligation which it imposes, than it does to a contract resting in mere words not reduced to writing. A written contract may be superseded, released or rescinded, by a subsequent verbal contract, upon good consideration.

The maxim of eo ligamine quo ligatus, which the law applies to contracts under seal, does not apply to merely written contracts. The question whether the party may bring this action, depends upon other considerations than the mode of authenticating the contract. 1. Did the plaintiff look to the written contract for his remedy ? Clearly not. For the written contract would show no cause of action. That depended upon the delivery, which must rest in parol exclusively, and be proved by testimony, without the writing. And this point is the very hinge upon which the right to recover rests. 2.

The written contract contained nothing more than the law will imply except as to the amount and time and mode of payment ; and it has always been held that any special agreement as to these mere incidents of the contract, will not preclude plaintiff’s right to charge the articles sold or labor performed on book, and recover in this form of action. — Newton vs. Higgins, 2 Vt. R. 366 — Fry vs. Slyfield, 3 Vt. Rep. 246 — Whiting vs. Corwin, 5 Vt. 451 — Blish et al. vs. Granger, ubi supra.— 3. It is urged that this is virtually a claim for damages for the breach of a special contract.

If so, the action cannot be sustained, But we consider that after the term of credit has expired and the obligation to pay in money become absolute, it is the same as if the contract had never contained any stipulation for payment in specific or collateral articles. And in all those states where tobacco, as in Maryland, or grain or manufactured articles, as in many of the New England states, form a quasi currency, this doctrine has always obtained.

Hence in this state it was very early decided, that goods sold and delivered, or labor done and performed, to be paid in specific articles, might, after the term of credit had elapsed, be recovered under the general count, which could, not be done at common law. There, unless the payment was to be made in money, the declaration must be special, and damages were given for the oion delivery of the specific or collateral articles.— 1 Saunder’s R. 269 and notes — 1 Chitty Pleadings, 337 — 15 Petersdorf, 435 and notes — Talver vs. West, Holt N. P. C. 178 — 2 Petersd. 421.

But with us, any such stipulation, when the contract is as in the present case, expressed in dollars, has been considered as introduced for the ease of the debtor, and unless performed, to be the same as if it had not been so expressed and the contract stood for so many dollars in the legal currency. Hence in every case, when’ in the action on book, the parties claim to recover for goods sold and delivered, or labor, &c. if they are the ordinary subjects of book charge and might have been recovered under the general indebitatus counts in asssumpsit, they will be permitted to recover.

In whatever form of action the plaintiff, in this case, proceeds, he must either recover the §15 or the value of the hubs, deducting payments made, and could never go for the value of the boots and shoes. It was at the election of defendant whether to pay in that manner or not. If he omitted so to pay, he could not be permitted to reduce the sum, named in the contract, in dollars, by showing the specific articles were of less value, nor could plaintiff be permitted to show they were of greater value.

But whenever the contract is so expressed, that the party must go, not for a fixed price named in currency, not for the value of his alternative of the obligation, but for the value of defendant's promise, then neither this action nor general indebitatus assumpsit will lie. In this case there is no error. Judgment is affirmed.