McGuire v. Kiveland

56 Vt. 62

• Court: Supreme Court of Vermont
• Decided: January 15, 1884
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

It appears that defendant was in the employ of Owens & Co. as a quarryman. The defendant was indebted to McGuire & Campbell for goods. The firm of McGuire & Campbell was dissolved, and this plaintiff, Thos. McGuire, succeeded to the business of that firm. The defendant desired to continue his purchases of goods for his current needs after the dissolution ; and to secure McGuire for goods ho might thereafter supply, gave an order upon Owens & Co. to pay the plaintiff the amount of his monthly store bill out of his monthly wages. The plaintiff gave Owens & Co. notice of this order, but Owens & Co.-refused to accept the order. Owens & Co., however, paid the defendant’s wages to the plaintiff for several .months;' but finally notified the plaintiff that they would do so no longer. After this notice Owens & Co. paid the defendant’s wages to defendant, and after said notice McGuire ceased to supply the defendant with goods. This action is brought against the defendant upon,the theory that he is liable to the plaintiff as for a tort to the extent of the unpaid balance due the plaintiff for these goods. The refusal of Owens & Co. to continue the payment of the defendant’s wages to the plaintiff was not prompted by the defendant. So far as the defendant was concerned it does not appear but that he was content that the order to pay the plaintiff should continue in force against Owens & Co. Owens- & Co. alone were responsible for the discontinuance of these monthly payments. The fact that the defendant received his monthly wages from Owens & Go. afterwards does not amount to a tort as to the plaintiff; he did not receive the plaintiff’s money — it was his own. So long as Owens & Oo. paid to the plaintiff these wages, such payment was good against the defendant; but the plaintiff held no binding obligations against Owens & Oo. to sb pay, as they refused to enter into, such obligation. The order was merely a request from the defendant to Owens & Oo. to pay to the plaintiff, leaving it for them to comply or not as they might elect.

When, therefore, Owens & Oo. refused longer to comply, the defendant might take his own wages without being guilty of any fraud upon the plaintiff’s rights.

The case is not like Troy v. Aikens, 46 Vt. 55, relied upon by the plaintiff. In that case the defendant misappropriated to his own use a promissory note issued by the town, and the town was thereby compelled to pay the same.

Here the defendant has not misapplied any money or other valuable thing of the plaintiff; and so the element of fraud is lacking.

The conclusion we reach does not debar the plaintiff from maintaining an action ex contractu to recover’the balance his due.

The judgment is reversed, and judgment that this action on the case cannot be maintained, and for defendant to recover his costs.