Stone v. Pulsipher

The opinion of the court was delivered by Hebard, J. It is hardly to be expected that any thing new can be said in relation to the book action, or that a case, involving new principles, can arise. The principles, 'upon which the action is based, have been thoroughly canvassed, and its boundaries fixed and determined. The convenience and necessity of the action have been sufficiently expatiated upon and explained, so that there is little left, but to determine, as the different cases present themselves, whether they fall within the limits which the courts have fixed. The action of book account, with some few exceptions* is concurrent with the action of general assumpsit, and the channel thus formed by this action has widened and deepened in its course, until there are but few of the ordinary transactions in business, which sound in contract, but what fall in and help swell the current. The principles which are involved in this action have been tested at different times, and the objections removed ; such as the magnitude of the articles charged; articles delivered on credit; the value and condition of the articles sold, with reference to latent defects; the manner and time of charging; the facts to which the parties may testify; and a variety of other points, at different times, have [432] been considered, and we are now to see whether the questions suggested in this case come within the principles already recognized. There are but two items in the case' which we regard as being much in doubt. One is as to the charge for the wagon wheel; and the other is the claim of $15 for the use of the oxen, which the auditor allowed, but which was disallowed by the county court. Other questions have been raised, but I regard them of less importance and J difficulty. It is objected that the plaintiff ought not to be allowed for the work of the boys, they being minors and having no guardian. But in that it is clear there was no error. The plaintiff, for the time being, for the want of a guardian, had the care of them. When they have a guardian, or arrive at the age of majority, he will be liable to account for their earnings if called upon, and a payment to the plaintiff would be a sufficient protection to the defendants against any liability to account for the same again. It is farther objected, that the whole of the plaintiff’s account, being upon a contract for the purchase of the oxen, cannot be charged on book. But to this the answer is full. The contract for the oxen was a conditional one, which condition was never complied with; the contract, such as it was, was treated by the defendants as being at an end, and the oxen were taken back, and the amount, although intended to be in payment for the oxen, had never been adjusted by the parties and the application made; so that in fact it was like any other running account, and when its authentication becomes necessary, whether it is for the purpose of recovering pay for the same, or of making its application in a particular way agreed upon, the book action and the party’s own oath are proper for that purpose. To the charge for the wagon wheel, it is objected that the facts disclosed, point to the action of trover, as the appropriate remedy; and if that is so, the charge cannot be sustained on book. To see whether this charge can be sustained, we must look at the facts; for the particular form of the charge, and the phraseology, are of less importance than the fact itself. The charge is for a wagon wheel, which was lent, and “ which the plaintiff used and wore out entirely, and never returned.” That implies no tortious act, and without some torong done trover cannot be sustained. As the wheel was worn out, it is of no importance whether the charge was for [433] the wheel, or for the. use of the wheel, so far as the amount is concerned. He was liable, impliedly, to pay for the use of the wheel, unless, at the time, it was understood to be otherwise ; but this fact the auditor has not found, and we are not at liberty to presume it; the presumption is the other way. If the facts showed that the claim was for refusing to return the wheel when demanded, or for any tortious act, it is clear that the charge could not be sustained. The right to charge for the use of the wheel existed at the time of lending it; the amount must depend upon the time it was used. That would form no greater objection in this case, than in the letting of a house, or other chattel, upon hire, for an indefinite time. The right to charge must not depend upon the happening of subsequent events, as in the case of Nason v. Crocker, 11 Vt. 463. But the charge and the right of recovery may become mature by what happens after the delivery of the articles, as in the case of Whiting v. Corwin, 5 Vt. 451. This charge was therefore properly allowed. The charge for the oxen, allowed by the auditor at $15, was disallowed by the county court, and of this the defendant complains. The same may be said of the form of this charge, as has been said of the charge for the wagon wheel. The charge is for a yoke of oxen, but the auditor allowed for the use of the oxen. The charge was $50, but only $15 was allowed by the auditor. In order to find that the defendants were entitled to recover for the use of the oxen, the auditor must have found that the contract for the purchase of the oxen was ended, either by the consent and agreement of the parties, or by the fault or neglect of the plaintiff; and we think it may fairly be implied, that, if the plaintiff did not pay for the oxen, he should pay for the use of them ; and certainly equity would 'require nothing less. The amount must depend upon the facts and circumstances of the case, and be determined by the auditor. The auditor has found the fact that the oxen never became the property of the plaintiff, and that the use of the oxen during the time the plaintiff had them in his possession was worth $15. Upon this state of facts we think the county court erred in disallowing this sum to the defendants, and their judgment is reversed, and judgment is rendered for the defendants for the sum of nineteen cents.