Albee v. Fairbanks

10 Vt. 314

• Court: Supreme Court of Vermont
• Decided: February 15, 1838
• Status: Published

Opinion

The Opinion of the Court was delivered by

Redeield, J.

In this case many of the items, charged in the plaintiffs account and allowed by the auditors, are for property jointly owned by the plaintiff and defendant. They grew out of the plaintiffs “ letting defendant a farm on shares, or at the halves,” as it is called. The plaintiff furnished the stock, and the parties were to share equally in the produce^ of the farm and stock, including the growth of stock. The '¡ parties had a joint interest in the profits of the farm. It ap- f pears from the report of the auditors, that the defendant obtained more than his share of the growth and profits of the farm and stock.

The question then presented for the court to decide is, wheth'er the plaintiff can recover in this form of action, for his share of this common property, used by defendant, without any •express permission of plaintiff. The court think the action of book account is not the appropriate remedy. There can be no doubt that the defendant is liable, in some form of ac'tion, and that the usual remedy in such cases is account, at •common law. The defendant may be charged as bailiff of the common goods to account for.

To hold that book account will lie, in the present case, will confound all distinction between that action and the common law action of account. This distinction has always been considered important, in this state. It was decided in May v. Williams, 3 Vt. R. 239, that two forms of action could not be joined. Clearly, then, they are not concurrent remedies, in all cases. And if not in all cases, it cannot be argued they are here. For here is no sale of the property, upon which indebitatus assumpsit could be sustained, but it is the simple case of one tenant in common, or joint tenant, having used the joint property, more than his share, without permission of the other, or, as in some cases, having put it wholly to his own use.

It is contended that the exception comes too late, after judgment to account. It is true, that in the action of account, at common law, the judgment to account conclusively settles the contract or relation upon which the plaintiff, in his declaration, claims the account. But in book account, it has long been settled, that the judgment to account concludes nothing. And it has recently been decided, that nothing can, in this action, be pleaded in bar, which pre-supposes that any matter of accounting ever existed between the par ties. Delaware v. Staunton, 8 Vt. R. 48.

As all the items are not of this character, the judgment of the county court must be reversed, and the report set aside, and the case referred to the same auditors.