Fry v. Slyfield

Hutchinson, C. J., delivered the opinion of the Court.---The report of the apditors, and judgementof the county court, having been in favor of the plaintifi, i~ is now urged as error, chat the plaintiff's claim cannot be sustained in this form of action. The claim consisted of one charge of labor, for a time stated, of himself and oxen, at $15 a month, it is objected, that thi~ work was done undet a special agreement, that the price was fixed, and that the payment was to be made at a then future day; and also~ that he did not work out the time for which he agreed. The Court consider none of these objections available. The line of distjnction between what can, and what cannot, be recovered in the book account action, has never been drawn with such particu~ larity, in this state, as to become a guide in every possible case that may arise nor i5 it easy so to comprehend the infinite varie~ ties, that may in future be attached to the items claimed, as to form any rule that ought to govern the whole. Decisions made in particular cases have been referred to by counsel; but not exactly covering all these objections. We may safely go so far as to say, that a mere claim for damages for any tortious act or neglect, or for any breach of contract, cannot be recovered in this action and that, in general, any claim for labor performed, or articles of personal property sold and delivered, and which have been prop~ erly charged on book, may he recovered in this action, as well as in any other. if the price has not been agreed by the parties, it must be set at a fair value; but its being agreed, does not deprive the party ofhis action on book. He might not be able to prove his claim in assumpsit, and might fail to recover. If he sues on book, and discloses on oath that a price was agreed for his labor, and this should throw him out of court, be would be without remedy. Just so, should he disclose honestly, what is not known to any but the parties, that payment was to be made at a day then future~ but which ~s gone by when the action i~ brçught, he mi~b~ b~ [250] left.without remedy. The plaintiff must not recover in this, any more than in any other action, before the payment is become due. And it is proper to charge for articles sold, when they are delivered. If the price is agreed, charge at that price. If pay-day is future, let the charge stand till due ; and, if then paid, credit the payment: if not paid, it becomes as mature for the book account action, as any other. A great share of the merchants’ accounts ip the country are of this character. Every roan knows at what prices he expects to pay for the goods he takes, at the stores, and he usually expects a day of payment for what he permits to be charged on book. The position, that this contract contains a condition precedent not performed by the plaintiff,is not supported by facts. True, the case states that the plaintiff was to work during sledding; but it also states; that sledding failed, which gave plaintiff a good reason to retire, aside from the one he spoke of to Wright. There is now no dispute, but that the plaintiff labored to the amount allowed'him by the auditors, nor, but that the pay-day bad arrived before the action was commenced. The remaining question is whether the defendant is holden to pay this sum to the plaintiff, upon the facts reported by the auditors. The auditors have made themselves and the Court considerable trouble by the shape in which they have presented the facts. They ought to have found expressly, either that the plaintiff did, or did not, perform the labor ; and, that he did, or did not, perform it under the employment of the defendant ; or under his contract with the plaintiff Instead of this, they have adopted a tedious circumlocution, touching upon all the incidents in testimony before them, from which they ought directly to have inferred, and reported, the facts. And what is the result of all this circumlocution? It just amounts to this, that the plaintiff did the work with or for Cole and Badger, but without their hiring him, or promising to pay him ; but being actually hired by the defendant to labor during the same period, and directed by him to stop and work for Cole and Badger, if they wanted. Upon these facts the plaintiff is entitled to recover of the defendant. If the defendant intended to dismiss the plaintiff from his employment, and have him hire himself out to Cole and Badger, and they become indebted to him for his labor, he ought to have seen to it, that the plaintiff as well as Cole and Badger, so understood it at the time. Of this there is no intimation in the facts reported. And [251] it was treated otherwise by Cole, Badger and Gregory, in all their accounts and settlements-. Furthermore, a view is presented, which renders it probable, that the defendant had an interest in having the plaintiff work with or for Cole'and'Badger, and his work not be carried into any of their accounts. It appears, that Cole and Badger were at work for Gregory in drawing not only the timber sold by the defendant to Gregory, but that'which be*longed stilljto the defendant, and "which Gregory was drawing for the defendant «pon hire. Now, it is evident, that, if Cole and Badger had hired and paid the plaintiff, they must have charged it to Gregory, and, if they drew defendant’s timber, Gregory must charge to defendant. But it appears, that Cole and Badger did not pay the plaintiff, nor make any charge against Gregory on account of the plaintiff’s work. Hence Gregory could have- no charge against the defendant for having paid Cole and "Badger for"plaintiff’s work. Now let the defendant pay the plaintiffTor this work, and all will seem about correct. Hibbard, for defendant. Davis, for plaintiff. The-uncertainty about the defendant’s liability, spoken of by the plaintiff to Wright, seems to have no proper bearing upon the case. His uncertainty was about the legal effect of things as they existed. It was die same uncértainty, which prompted the defendant to make his defence ; the same, on which opposite counsel disagree : the same, which has made-'fhe auditors, and ’the county court, and this Court, 'tbe'trouble ‘of'heariflg and deciding •between the litigant parties. He has not 'confessed any fact to Wright, which serves to attach any uncertainty to his claim, in a legal point of view. The difficulty was, he did not know the Jaw. The judgement of the county court is -affirmed.