Ira Davis vs. Seth Barton, 8 Vt. 246

The opinion of the court was delivered by CollameR, J. As to the case on book, Davis vs. Barton, several questions are started. It is insisted that Davis could not sustain the action, inasmuch as he had not labored out the last year, for which he contracted, before bis suit was commenced. The auditor however reports that it was further agreed between them, that either party could end the contract at his own pleasure; therefore Davis had the right to do so unconditionally, and he so did.

But it is further to be observed, that Davis’ account for his two first years’ labor was fully due and unsettled, except the money part which was put into note. This was a sufficient foundation for the action when commenced, and even the last service was fully due before the auditor’s setting, and by the very terms of the statute he must include all accounts then due. It is next insisted, that Davis was to receive

part in barter pay, and that such part ought not to be included in the report and judgment, as it was not due when suit was brought. It appears by the report, that Davis was to receive

part in barter pay, but what part does not appear. It seems by the report and account ann.exed, that he received over one hundred dollars in pay other than money, and that he was bound to receive any more does not appear, and this court always accept and render judgment on a report unless it appears wrong. If Barton had the right to make payment, further in collateral or specific articles, it must have been at the end of the service, in July 1834. It must, therefore, have been all overdue when the auditor made his report, and was, therefore, properly included. In relation to the case of Barton vs.

Davis, Barton had some account against Davis, all of which Davis had credited on account to him. When Davis commenced his two suits, Barton pleads his account in offset to the action on note with, a view to overbalance that and cast Davis in a bill of cost. This is not a case within the statute where a defendant, in book debt action before a justice, is permitted to sue for his account which has not been allowed him by a plaintiff. In this case Barton’s account was all credited by Davis.

Nor is this a case where Davis actually ow.ed Barton a balance on book and so Barton needed to take measures for his own security ; for it fully appears that Barton owed a balance to Davis. Nor had Barton any right to apply his account or any part of it on the note, where it was not so directed at the time of delivery. Had such been its direction on delivery, it would have been payment, not matter in account, and would have been good on a plea of payment or on the general issue, but could not have been proper in account.

The moment Barton insists upon it as matter in account that settles it as not a payment or application on note, and leaves it in account, of which no application can be made until a balance in account is found. That balance could be found only on examination of the whole accounts between the parties. This balance turns out to be against Barton, and whether so found on an audit on the suit on book or on the declaration in offset on book, it is equally fatal to Barton applying any thing on the note. Judgment affirmed.