Wainwright v. Straw

[219] The opinion of the court was delivered by Bennett, J. This is an action of assumpsit, upon a special promise, and the declaration also has a general count. The recovery was upon the general count. The case has been defended with zeal and ability, and all has been made out of the defence, which the case was susceptible of, but the court are not convinced that there was error in the proceedings of the county court. The deposition of Brown states, in substance, that both the defendants applied to him to buy a stove for Straw’s use, and that the witness, as the agent of the plaintiffs, sold them one upon their joint responsibility, at a given sum payable in cattle at a given day, and if not paid in cattle, to be paid in grain in a given period thereafter. It is insisted, in argument, that the general action cannot be sustained, inasmuch as there was a special contract for the stove, payable either in cattle or in grain. It is to be remarked that the time of credit had expired before the suit was brought; and in Way v. Wakefield, 7 Vt. R. 223, it was held that the general action would well lie for a harness, sold at a given price payable in boards, after there had been a breach of the contract. This case is, I think, according to the current of English authorities ; and must be regarded as settling the law in this state. In the present case, the price of the stove agreed upon was so many dollars, and not for a given quantity of grain. The debt had not been paid in the property at the time agreed upon, and it had become absolutely a cash demand. After this, there seems to be no reason why the general action will not lie, as well as it would if the debt had been originally payable in money. It is also objected that the contract, so far as Cunningham is concerned, is within the statute of frauds. To bring a case within the statute of frauds, it is necessary that the undertaking should be collateral to, and in aid of, the promise of another. But in the present instance, the promise of the defendants is joint. They both made the purchase, and upon their joint responsibility. It is, also, said that the general action will not lie against Cunningham, as he stands but a surety for Straw. If such was the relation of the parties, there would be weight in the [220] objection. But such is not the case. To create this relation the sale should have been made to Straw alone. The fact that it might have been for the individual use of Straw, is not sufficient to create the relation of principal and surety, It is said that the note, given by the defendants, upon the sale of the property, precludes the. general action. The note, if it may be called such, is payable to J. & - Wainwright, with cattle in one — from the 1st of October next, or merchble grain by the first of January following. The uncertainty, appearing upon the face of this note, is such as to render it void. We cannot, by intendment, supply the name of Rufus, nor the word- year after the word one. We might as well intend it payable in one month, as one year. The case falls within the principle of the case of Brown v. Bebee, 1 D. Chip. R. 227, in which it was held that a note, by which the defendant promised to pay the plaintiff sixteen-by the first day of May, then next, was a nullity. In such case, parol evidence cannot be received to give effect to the intention of the parties. Besides, it is a principle of the common law, that one simple contract is not a merger of another; and it is held in New York, and this is probably the English law, that a negotiable note, is not a merger of the original cause of action, so as to preclude a right of recovery thereon, if the note is brought into court to be surrendered up. It might seem that the case of Hutchins v. Olcutt, 4 Vt. R. 549, somewhat extended the doctrine of merger, but I am not aware of a case in which we have extended it to a note not negotiable. In the case before us, there was no evidence of any agreement, that the note should be received in satisfaction of the stove. No such fact is found by the county court. Brown was clearly a competent witness, and his deposition properly admitted. It is a well settled principal, founded ded upon public convenience and necessity, that a mere agent or servant is a witness for his principal. Greenl. Ev. 459. In this light the deponent stood to the plaintiffs. The judgment of the county court is affirmed.