F. V. Goodrich, & Co. v. Barney

2 Vt. 422

Opinion

The opinion of the court was pronounced by

Hutchinson, J. — The proceedings of the plaintiffs, in taki ng the order and commencing their action before they presented the order for acceptance and payment, and then presenting it without the writing from Lemuel Barney, that had been attached to it, seem to carry rather a fraudulent aspect; yet it is difficult to make it a defence to this action upon any principle recognized in law. If John Barney had had the effects of the defendant in his hands, at the time, this conduct of the plaintiffs would probably have made the order their own in satisfaction of their debt ; especially would it have had that effeet if the writing, separated from the order, had possessed any binding force upon Lemuel Barney, or, upon his funds in the hands of John Barney. So if this order had been the plaintiff’s only security for their debt. But this order was to be a satisfaction only upon acceptance and payment. The conduct of the plaintiffs cannot be justified in a moral point of view in any way, unless upon a supposition, that they considered the writing from Lemuel Barney of binding force, when they received it, and, afterwards discovering it to be otherwise,' treated it as a nullity. But, whether the conduct of the plaintiffs be approved or not, the defendant seems to have lost nothing by it. He had no funds in the hands of John, that could be subjected to any hazard of loss ; and, if John had accepted and paid the order, the defendant would then have become his debtor for the same amount; or, if paid from the funds of Lemuel, in the hands of John, the defendant would have been a debtor of Lemuel for the same amount. Either way, the defendant must be debtor till payment is made, and this'action only calls upon him as a debtor -for the true sum he owed the plaintiffs. John testifies, that he should have accepted and paid the order,- if the writing of Lemuel had remained attached to' it. If so, the defendant, as before observed, Would have owed the sum either to John of Lemuel. But this testimony of John is merely testimony, of which this court can take no notice. If the case had shown us that the county court found the fact that John, in such an event, would have accepted and paid the order, that would have brought it under our consideration. But the fact is not so presented ; and it is possible that John, when he testified, did not know how he would have .felt about accepting the order with said request of Lemuel attached to it, nor how able and ready he would have been to pay in season to prevent the very suit now before us.

Royce and Hunt, for plaintiffs. Brown and JY. L. Whittemore, for defendant.

The parties evidently contemplated no cause of action upon this order. The only remedy to collect this judgement, by force of law, was such an action as is now before us. If, therefore, the business about the order could have any effect favorable to the defendant, it must be a temporary suspension of the cause of ac-"iion. Such an effect the law will not indulge. A covenant never to sue forms a bar 5 but a covenant, ever so strongly drawn, not to sue for a given time, is no bar to the action. It may be the foundation of an action to recover damages for suing in violation of such covenant, but nothing more.

The judgement of the county court is affirmed.