Day v. Essex County Bank

The opinion of the court was delivered by Redfield, J. The court have not been able to find much ground to doubt whether a private corporation of another state could be held to answer to an action in our courts. We can see no very good reason why artificial persons should not be liable to suit in the courts of another state, as well as natural persons. It is not necessary to inquire how far public or municipal corporations could be held to answer suits in a foreign jurisdiction. The court think the plea in bar, in this case, is defective. It does not meet the breach assigned, either by denying it or affording any sufficient excuse. Where the parties are to-perform concurrent acts, and the plaintiff’s act forms the basis or consideration of defendant’s act, the defendant may always excuse himself from performance by relying upon the failure of the plaintiff. Lawrence v. Dole, 11 Vt. 459. But where defendant’s act, as in the present case, rests upon an independent consideration, he cannot excuse himself by showing a failure to perform on the part of the plaintiff. Boon v. Eyre, 1 H. Black 273. Pordage v. Cole, 1 Saund. R. 320. (4) c. Hence, all that is said in the plea of the failure of the plaintiff to perform is irrelevant. For, non constat, if defendant had performed on his part, that the arbitration would not have [102] proceeded. The defendants would at least have been released from their obligations. The substantive part of the breach assigned in the declaration is, that defendants did not attend nor procure the attendance of Reuben Whalon, at the time and place set for trial. This is a sufficient breach, for without this the hearing could not, by the terms of the submission, be had. The plea is, that, at the time set for trial, the arbitrators continued the hearing one day, and then one month, and at the third day appointed, neither the arbitrators nor the plaintiff attended; for the very sufficient reason, doubtless, that there was no hope of meeting either defendants or Reuben Whalon, whose attendance defendant had undertaken to procure. But, at all events, this is no excuse for defendant’s failure to perform the contract on his part. There is no pretence of performance on the part of the defendants urged in the plea, and, as we have seen, no excuse. The plea is, therefore, fatally defective ; and the judgment of the county court, to that effect, is correct in substance, although in form, according to the pre■cedents, it should have been that the replication is sufficient, instead of the plea in bar insufficient. We do not intend to say that the replication is absolutely formal,but only that it is a good enough replication for abad plea. There is something rather anomalous in the form of the replication, which was doubtless induced by the double aspect of the plea in bar. The special inducement of the traverse, and the negative or absque hoc clause, instead of being, as they should be, the one the affirmative and the other the negative of the same proposition, are wholly independent of each other. A special traverse, in its simplest form, is not very unlike some of the eastern forms of speech found in the Holy Scriptures: “ Thou shalt die and not live 1” “ He shall see for himself and not another.” There are found many modes of speech among the ancient Greeks not very dissimilar. It consists of an affirmative, not compatible with the adversary’s former pleading, and a negative, in direct contradiction to it. In regard to the rule of damages adopted by the county court, it is'undoubtedly novel, and so is the case, but we do not see that it is objectionable. In actions of contract, the party recovering is always entitled to recover what he has lost [103] by the default of the defendant. He is entitled to be placed in as good condition as that he would have been in, had the defandant performed his contract. In ordinary cases of submission to arbitration, where there has been a failure to proceed, the other party is entitled to his costs and expenses. And this is all he has lost, the cause of action still remaining. But here the cause of action was released, as the consideration of the submission. It must be recovered here or finally lost to the plaintiff. We see no objection to its being included here, as the measure of damage, together with costs and expenses. Judgment affirmed.