Tuttle v. Green

10 Vt. 62

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

Opinion

The opinion of the Court was delivered by.

Williams, C. J.

brought to This is an action on book, recover for certain charges, made by the plaintiff, against the' defendant, for carding wool and dressing cloth. The account commences in June, 1833, and ends- in October of the same year. The defendant resists a recoyery, on the grpund that he made no contract with the plaintiff,, büt with one Smith, and that he has paid Smith therefor. ft appears from the report of the auditor, that Smith was, in the emplpyment of the plaintiff, at monthly wages, from some time in Jung, 1833, to December of the same year, carding wool and dressing cloth, and that for the accommodation of the customers of the plaintiff, in the vicinity where the defendant resided, they were toJe^e their wool and cloth at the house of Smith, and receive them, when finished, at the same place. It does nqt, however, appear, that Smith, at any time during the period aboye named, was at work for himself, either in a shopof hig own, or in the plaintiff’s shop, neither is it to be inferred from the few instances in which Smith received pay, or. made contracts, that he ever was permitted'by the plaintiff to hold himself out as principal, or that he ever did so. The con7 yersation Smith had with the defendant, when the agreement was made to do the work at cash prices, was probably at the time when Smith contemplated hiring a shop and setting up for himself. The auditor finds that this was in June, and was probably near the time that Smith went into the employment of the plaintiff. While Smith was in the employment of the plaintiff the wool was received by him. This, so far as the plaintiff is concerned, was a receipt of the wool by him to bg carded. The work and labor were performed by the plaintiff, in his shop, and the defendant had the benefit of that labor, The defendant should have known what was known to all the people in that vicinity, that Smith was in the service of the plaintiff, and whatever he did, in that capacity, was for the plaintiff, who was entitled to the pay therefor, As to the time when the defendant was informed that Smith was at work for the plaintiff, an expression somewhat indefinite is used in the report, It is found that he had this knowledge soon after the wool was delivered, and he was also informed that his wool had gone to the plaintiff’s shop. This was before the cloth was dressed, before it was delivered to be dressed, and before the defendant had made any payments ^ Smith. After such notice, he would not be protected in making any payments to Smith. He cannot be in a better situation, than he would have been, if he had actually been indebted to Smith and the demand had been assigned to the plaintiff and notice given to him of the assignment. Any payments, made to Smith after such notice, would not have protected him against a recovery by the plaintiff.

In the present case, as the services charged in the plaintiff’s account were actually performed by him, or his agent, as Smith had no authority to make any contracts, or receive pay, as the defendant had notice, before any, or but a small part, of the work was performed and before any payments were made to Smith, the plaintiffis entitled to recover for the amount of his charges, and the defendant cannot be allowed any part of his account against Smith, in payment of the same.

The judgment of the County Court is, therefore, reversed, and judgment must be entered for the plaintiff to recover the amount, as found by the auditor.