Baxter v. Thompson

26 Vt. 559

• Court: Supreme Court of Vermont
• Decided: April 15, 1854
• Status: Published

Opinion

The opinion of the court was delivered by

Isham, J.

Whether a demand in this case, was necessary before the commencement of this action; and if so, whether in this instance, the demand was sufficient, are questions, which do not properly arise on this report. No matter can be pleaded before the auditors, which shows that the defendant is under no obligations to account in this action. It should have been specially pleaded in bar of the action, before judgment to account was rendered. That objection, if it exists, must be treated as waived by not pleading the matter in bar, before the rendition of that judgment. 1 Steph. N. P. 3. Com. Dig. accompt F. 11.

The plaintiff has filed no exceptions to the acceptance of this report. The balance due the plaintiff as allowed in the items of charge, is $74,60, but by some mistake was carried out at the sum of $73,60, on which the judgment was rendered. This matter, however, cannot now be corrected, unless the judgment is reversed for some cause, for which exceptions were taken by the defendant; in which event, the accounts on both sides would be opened, and it would then be the duty of this court to render such a judgment as should have been rendered by the county court.

In relation to the plaintiff’s account, we perceive no error for which this judgment should be reversed. No sum has been allowed against the defendant, for which he has reason to complain. The charge for $12,50, for money paid on the’contract of December 14, 1846, for the sale of hops in the city of Quebec, was properly not included in the balance as allowed by the auditors. The charge constituted no part of their dealings, arising out of the contract of April 30th, 1845. The auditors have foundthat the contract on which this money was paid, was put an end to by the defendant, and that the plaintiff has lost the benefit of this contract by that act. Whether the plaintiff can recover back that money and if so, whether the whole, or a proportional part, we are not called upon now to decide; as it is' á matter for which assumpsit is the more appropriate form of action, and which as it is objected to, cannot be investigated in this action of account. There are other items- of charge in the plaintiff’s, as well as the defendant’s account, which probably were subject to the- same objections, but which were allowed without objection at the time, and for which no exceptions were taken. We refer to the charge for hay in the plaintiff’s account, and to the charge for a note and interest thereon, in that of the defendant. But as no objections were taken, or exceptions allowed for that matter, it is no cause for reversing the judgment.

The more important questions in the case, arise from the disallowance of a portion of the defendant’s account. The charge of $16,50, for going to Quebec and expenses, were properly disallowed, for the same reason that the $12,50 were disallowed in the plaintiff’s account. The charges from the 4th to the 16th inclusive, amounting to the sum of $15,95, we think, under the circumstances of the case, were properly disallowed. They all depend upon the same question, whether the defendant was justified in taking and transporting to market and selling Mr. Baxter’s share of the hops, raised during the year 1849. It is to be observed, that this is not a case of consignment of hops to be sold on commission; nor is it the case, where joint owners of property have requested one of their number to dispose of the property with an understanding express or implied that compensation was to be paid for such services; on the contrary, the auditors expressly find, that the hops belonging to Mr. Baxter, were taken by the defendant, with a large quantity of his own, and transported to Boston, Albany, and Philadelphia, for sale, without the knowledge of, or consultation with Mr. Baxter, for which these charges for freight, inspection, and commission, &c. are made. By reference to the contract, we find that the hops or their proceeds, when prepared for market, were to be equally divided between them. The understanding of the parties in that contract is quite obvious. If a sale was made by tbeir mutual consent, the avails were to be equally divided; but if not sold in that manner, the hops were to be divided, so that each of the parties could receive their proportion, and thereby be enabled to make such a disposition of their respective shares, as they saw fit. Neither of these parties intended to give the other the right of transporting his share of this property to a distant market, and subjecting himself to such expenses, without his knowledge or consent. There was no express stipulation to that effect, and none is to be implied from, the mere relation of joint ownership. It may have been for the interest of one to sell, and of the other to retain his proportion for present or future use. These principles were fully recognized by Chancellor Kent, in the case of Franklin v. Roberson, 1 Johns. Ch. 157, and of Bradford v. Kinsbuly, 3 Johns. Ch. 433. Thornton v. Preston, 1 Aust. 94.

The same, and still greater objections, exist in relation to the charge of $7,16, being the discount at the rate of 10 per cent., on the sale of a note given for the hops. If a special authority had been given to sell, it would not have authorized a sale on credit, but only for ready money. 1 Amer. Lead. Cases 630. The defendant had no right to sell and take the note and dispose of it at such discount, and charge the owner of the goods with the amount; a fortiori, such right does not exist in a case like the present, where the party had no authority or power to sell even for ready money. Paley on Agency 26-173. The other items in the defendant’s account depended upon mere questions of fact, and on which the finding of the auditor is conclusive. The objections to the deposition have not been insisted upon, at this hearing of the case. The result is, that the judgment of the County Court is affirmed.