Argued at January term, 1870. Held for advisement. Decision announced, January term, 1871, in the following opinion by
Barrutt, J.
When this case was decided, 36 Vt., 593, upon the questions then presented, the court held, with some hesitation, and not with full satisfaction to any members of it, that the declaration in the added count might bear an interpretation to the effect that, in consideration of the delivery of the goods by the plaintiff to the defendants, they jointly verbally promised to pay the price of them as specified in the notes given by Warner,—not that they became jointly obligated by the notes, or that Ladd became in any way bound by the notes as contracts to which he was a party. Upon the interpretation thus held to be allowable, Ladd’s liability accrued subsequently to the contract of sale negotiated by Warner, and to the giving of the notes by Warner, and [352] accrued solely by his verbal promise alleged to have been made in consideration of the delivery of the goods to the defendants. It seems necessary thus to recur to that decision in order correctly to apprehend and appreciate some of the questions now presented for decision.
The trial in the county court proceeded on the assumption that, for the goods negotiated for by Warner in October, 1845, the recovery must be had, if at all, under the new count. The third request of the defendant Ladd was, “ that no verbal promise of Ladd, either to Hotchkiss or Warner, after the goods were bought by Warner, would make Ladd liable on the notes, or for the goods for • which they were given.” Under the former decision it is plain that, as to Ladd’s being liable on the notes, the request was well founded ; and that, as to his being liable for the goods, the case should have been put to the jury upon the theory of the interpretation given to the declaration by that decision. In the exceptions it is said that the court charged in accordance with the first six requests of the defendant, except so far as the charge thereafter detailed conflicts with those requests. When we look forward into the charge as detailed, it would seem that the learned judge had not in mind the interpretation given to the amended count by the supreme court. He said, “ if the jury should find that the defendants were partners when the goods were purchased and the notes given, and that, by agreement between the defendants, Warner was to purchase the goods upon the credit of both defendants, and give his notes, and both defendants were to be liable to pay the notes, and this was made known to the plaintiff by Warner at the time of the purchase, and the plaintiff sold the goods upon the credit of both defendants, and relying on the liability of both defendants upon the notes, then defendant Ladd is liable upon the notes.” This would seem to be tantamount to adopting the construction and meaning of that count claimed by the defendants on the former trial;—in relation to which the court, by Poland, Ch. J., said, “ If this be the meaning, it is a clear case of a collateral promise within the statute of frauds, and doubtful as to consideration, even if the promise were in writing.” Upon a slightly different hypothesis of facts the judge proceeds [353] to put an alternative proposition to the jury, saying, “ if Ladd was to be jointly liable upon the notes with Warner, and this was made known to the plaintiff at the time of the sale, and he sold and delivered the goods upon the credit of both defendants, and received the notes relying on the liability of both defendants to pay them, then the defendant Ladd is liable upon the notes.”
In both those forms of putting the case to the jury, the notes are treated as having been received in payment for the goods, and this suit as having been brought to enforce them. This is in conflict with the view in which alone the supreme court decided, supra, that the defendant Ladd can be held liable under the amended count. In that view the notes of Warner were taken by the plaintiff as security merely, and not as payment. They were given in consideration of the sale and purchase negotiated by Warner—Ladd not becoming liable thereby, but solely, if at all, by reason of his subsequent verbal promise, upon the consideration that the plaintiff would deliver the goods in pursuance of such bargain made with Warner. This mode of putting the case to the jury palpably conflicts with said third request, and is in itself erroneous. For this reason the judgment is to be reversed.
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Argued at January term, 1870. Held for advisement. Decision announced, January term, 1871, in the following opinion by
Barrutt, J.
When this case was decided, 36 Vt., 593, upon the questions then presented, the court held, with some hesitation, and not with full satisfaction to any members of it, that the declaration in the added count might bear an interpretation to the effect that, in consideration of the delivery of the goods by the plaintiff to the defendants, they jointly verbally promised to pay the price of them as specified in the notes given by Warner,—not that they became jointly obligated by the notes, or that Ladd became in any way bound by the notes as contracts to which he was a party. Upon the interpretation thus held to be allowable, Ladd’s liability accrued subsequently to the contract of sale negotiated by Warner, and to the giving of the notes by Warner, and [352] accrued solely by his verbal promise alleged to have been made in consideration of the delivery of the goods to the defendants. It seems necessary thus to recur to that decision in order correctly to apprehend and appreciate some of the questions now presented for decision.
The trial in the county court proceeded on the assumption that, for the goods negotiated for by Warner in October, 1845, the recovery must be had, if at all, under the new count. The third request of the defendant Ladd was, “ that no verbal promise of Ladd, either to Hotchkiss or Warner, after the goods were bought by Warner, would make Ladd liable on the notes, or for the goods for • which they were given.” Under the former decision it is plain that, as to Ladd’s being liable on the notes, the request was well founded ; and that, as to his being liable for the goods, the case should have been put to the jury upon the theory of the interpretation given to the declaration by that decision. In the exceptions it is said that the court charged in accordance with the first six requests of the defendant, except so far as the charge thereafter detailed conflicts with those requests. When we look forward into the charge as detailed, it would seem that the learned judge had not in mind the interpretation given to the amended count by the supreme court. He said, “ if the jury should find that the defendants were partners when the goods were purchased and the notes given, and that, by agreement between the defendants, Warner was to purchase the goods upon the credit of both defendants, and give his notes, and both defendants were to be liable to pay the notes, and this was made known to the plaintiff by Warner at the time of the purchase, and the plaintiff sold the goods upon the credit of both defendants, and relying on the liability of both defendants upon the notes, then defendant Ladd is liable upon the notes.” This would seem to be tantamount to adopting the construction and meaning of that count claimed by the defendants on the former trial;—in relation to which the court, by Poland, Ch. J., said, “ If this be the meaning, it is a clear case of a collateral promise within the statute of frauds, and doubtful as to consideration, even if the promise were in writing.” Upon a slightly different hypothesis of facts the judge proceeds [353] to put an alternative proposition to the jury, saying, “ if Ladd was to be jointly liable upon the notes with Warner, and this was made known to the plaintiff at the time of the sale, and he sold and delivered the goods upon the credit of both defendants, and received the notes relying on the liability of both defendants to pay them, then the defendant Ladd is liable upon the notes.”
In both those forms of putting the case to the jury, the notes are treated as having been received in payment for the goods, and this suit as having been brought to enforce them. This is in conflict with the view in which alone the supreme court decided, supra, that the defendant Ladd can be held liable under the amended count. In that view the notes of Warner were taken by the plaintiff as security merely, and not as payment. They were given in consideration of the sale and purchase negotiated by Warner—Ladd not becoming liable thereby, but solely, if at all, by reason of his subsequent verbal promise, upon the consideration that the plaintiff would deliver the goods in pursuance of such bargain made with Warner. This mode of putting the case to the jury palpably conflicts with said third request, and is in itself erroneous. For this reason the judgment is to be reversed.
Though several other points have been discussed, we withhold any intimation of views upon most of them, thinking it probable that the course of another trial may be such as to render them of no importance in such trial. There is one subject, however, on which we regard it proper to make a suggestion, viz : what consideration should be given to the original special declaration, as affecting the proof of the facts set forth in the amended count. We are not prepared to hold that it operates by way of estoppel. At the same time the impression must be strong upon the professional mind that such a count as the first one would not have been drawn by the learned attorney who drew it, if the facts had not been stated to him by his client substantially as they are set forth in that count. It is not one of those formal counts that are made up mainly of technical fictions upon a substratum of real facts . that need not be specifically averred. On the contrary, its whole structure and substance and gist are made up of specific facts, in virtue of which the alleged liability of the defendant Ladd was [354] claimed to have arisen. As such it was entered in court as showing the cause and right for which the suit was brought. It is apparent, upon slight consideration, that Mr. Ladd could not be charged with liability upon that count. The new count was filed after the cause had been entered in court, and in it the transaction alleged, upon which it is now sought to charge Ladd with liability, is entirely different in its material facts from that set forth in the first count. It cannot fail to occur to any appreciative and reasoning mind to inquire why the learned and skilled attorney who drew the declaration set forth in it a transaction in detail which clearly gave no right of action against Mr. Ladd, unless the transaction had been stated to him in its main facts as it is thus set forth ; nor fail with increased interest to inquire why he did so, if in point of fact his client, the plaintiff, had told him that the transaction was as it is stated in the amended count. If the bill of exceptions gives a correct and adequate view of the standing of the case upon this subject, we think the defendant Ladd was warranted in making the ninth request, and that the court would not have transcended just limits of judicial propriety if the substance of that request had been incorporated into the charge, to the effect that said first count tended strongly to show that the plaintiff stated the facts to his attorney in substance as they are therein set forth ; and the facts therein set forth tend strongly to eonferadict and disprove the facts set forth in the amended count, and were entitled to weigh strongly against the credit to be given to the plaintiff’s testimony, to the effect that before the original declaration was drawn up, he stated to his attorney the same facts that are set forth in the amended count,—with other instructions and advice, such as the state of the evidence would render proper on this subject, in order that the jury might most adequately appreciate the real significance of that first count as bearing upon the truth of the facts set forth in the amended count.
Without further discussion, the judgment is reversed, and the cause remanded.