Bliss vs. Arnold, Leggitt & Lapham, 8 Vt. 252

The opinion of the court was delivered by Williams, Ch. J. We are all of opinion in this case, that the judgment of the county court should be affirmed. The defendant was justly held accountable for the cheese in question. It is found that the defendant and his partners were commission merchants— that they received the cheese to sell; and that they sold it for cash, and were negligent in not getting the pay therefor.

If there was a loss, by the failure of the men to whom the cheese was sold, the loss should fall upon the defendant and not on the plaintiff. * In all sales for cash, the moneg^opgt jjg.paid when the property is delivered. It is wholly inconsistent to claim that a sale for cash means a sale on a credit for a week or ten days. If the commission merchants in New-York have adopted such a custom as was contended for and testified to, it must be for their own accommodation, and cannot be recognized as obligatory on those who intrust to them property to be sold for cash.

We cannot believe there is any such custom recognized as law, and we find a decision of Judge Gardner, at the circuit in Monroe county, in the case of Graves vs. Hendrick & Smyth, directly opposed to any such custom as binding upon the person who intrusts property to a commission merchant. On the motion in arrest, which was overruled in the- county court, it may be remarked, in the first place, that it is doubtful whether any motion in arrest can be sustained when the issue is tried by the court.

The court having the whole case before them, it is supposed they would not render judgment on a declaration wholly defective. A motion in arrest is to prevent a judgment, and is filed after a verdict and before judgment. Where the court n ieb the issue of fact, the finding the issue and rendering the ludg-tnent is done at one and the same time. But on examining the declaration, we do not discover any defects not cured by a verdict. A sufficient consideration is stated in the compensation or commission which the defendant was to receive.

The want of alleging a special demand was a defect, but would have been cured by a verdict. Without proving such a demand, the court would not have permitted the jury, nor would the jury have given a verdict for the plaintiff. It is true, the want of stating a special demand, when it is necessary, has been holden bad on a general demurrer, and it has been decided, that it would not be aided by a verdict. The authority of those cases is questionable, and in the case of Bowdell vs. Parsons, 10 East. 359, the want of alleging such request was held not a sufficient objection in arrest of judgment.

When the issue is tried by the court, we are very clear that the objection ought not to prevail in arrest. The judgment therefore of the county court must he affirmed.