Gunnison v. Bancroft

The opinion of the; court was delivered by Redfield, J. — The only question to be determined in this case, is, whether the defendant can, under the circumstances of the case, be allowed the charge in his account for rent of a house. The boots and shoes, charged by'the plaintiff to the defendant, were delivered partly in the Year 1836, and partly in the year 1837, but all during the'year for which the house was hired. The auditor reports, that the defendant expected to receive the shoes and boots towards the rent, as well those delivered in 1836 as in 1837 ; but that the plaintiff did not expect those delivered in 1837 would be applied towards the rent. This difference in the expectation of the parties is doubtless found by the auditor from their own testimony, and it certainly places the plaintiff in a very awkward position. He has charged all the work, even that whieh he admits, or which, beyond all controversy, was expressly agreeed to be applied towards the rent. By so doing, he declares that the parties expected the rent to be adjusted with their other book accounts. Else how shall justice be done ? Case v. Berry, 3 Vt. R. 332. If the party charge any matter upon book, and present it before the auditor, and claim to recover for it, he cannot object to any other matter being brought into the account upon which it was agreed that this charge should apply. Farrand v. Gage, 3 Vt. R. 326. Fassett v. Vincent, 8 Vt. R. 73. The same principle was decided in Harmon v. Sumner, in Orleans county, which is not reported. And it is very evident, in this case, that the contract to let the defendant have boots and shoes, during the year, to apply towards the rent, must be considered as extending to the year for which the house was hired. Any other construction would be little better than a mere quibble. The language of the plaintiff must be construed as the defendant had a right to understand it, or as the plaintiff expected the defendant would understand it. And the plaintiff cannot [494] now be permitted to give it a different operation in consequence of some mental reservation. The judgment of the county court, which was to this effect, must be affirmed.