Denison v. Tyson

The opinion of the court was delivered by Redpield, J. The contract, declared upon in thp present action, must be treated as a promissory note, according to the decisions in this state, both as to the form of declaring upon it, and the necessity of going into proof of the consideration, in the first instance, on the part of the plaintiff. Dewey v. Washburn, 12 Vt. 580. Brooks v. Page, 1 D. Ch. 340. In regard to the right to bind the defendant by the bare acknowl-edgement of “ value received,” the same authority is required, to execute this note, as a promissory note, in the strict sense of the terms. It is no doubt true, that, at common law, such a memorandum as this note could not, in any sense, be treated as a promissory note. It would, at most, be a mere admission in writing, and would, perhaps, prima facie, import the receipt of so much money to the use of the person to whom it was payable, but must be declared upon specially, and the recovery might be defeated, by showing that no money was in fact received; — so that, at common law, such a writing, unless actually given for money advanced, would be of little benefit. Hence it is true, doubtless, that no such species of contract has ever been in general use any where, except in New England. The late Mr. Justice Fletcher, of the King’s Bench in Canada, when he first came into the eastern townships to preside at their trials of matters of fact, was very much annoyed by this species [554] of contract, which had been imported there from this state. But, with all the energy of his brilliant talents, so deeply rooted was the practice, and of so great convenience in a country remote from market, and where commerce consisted, in a great measure, in the barter of commodities, he was at last compelled 'to admit, that it was not an easy thing to uproot the long established usages of business, even in a limited section of country. The worthy and learned justice of the King’s Bench finally exclaimed, in furore, and almost in despair, that he thought it id as asking too much, that the court should sit all day, to determine the amount of damages to be assessed upon a “'promissory note! for two middling, lilcely, young calves”!! But the venerable man, the learned and eloquent judge, backed by the entire weight of the British crown, found it no small labor to convince the people of his district, that such a contract was not a “ promissory note.” In this state we have taken a shorter way of settling the matter, by deciding that all commodities, in which our citizens deal, shall serve as a quasi currency. The jury having, in the present case, determined, under proper instructions, that the' agent of the defendant, who executed this note, had no express authority to do so, and that such acts of his were not adopted by any subsequent recognition of the defendant, or of his general agent, the only remaining question is, whether any such authority is to be implied from the general scope of the business, in which the agent was employed. This, it would seem, would not be difficult of determination, if we regard the general custom of the country in reference to such agencies, — which must have been the rule, by which the agent would be expected to govern himself, and so must be esteemed an important qualification of the contract of agency. The agent was employed, as a sub-agent, to dispose of wares in a portion of the state. He was employed to sell, — not to purchase other property, nor to raise money on the credit of the defendant, even if the payment should ultimately. be made in stoves, — much less would he be supposed to have authority to execute promissory notes on the part of the defendant. All this might properly fall within the scope of the general agency of Haven; and if West made contracts of this kind, and proposed to bind the defendant by such a note, when he was expressly forbidden to do so, there could be no [555] doubt, so far as he was concerned, that he acted beyond the scope of his authority, unless he had express permission from Haven, or the defendant. And to us it seems there was nothing in the nature of West’s employment, calculated to induce others to believe that he had any authority to bind the defendant by such a contract as the present. This contract,’so far as the “value received” is implied from its terms, is the mere admission of the agent. The admission of an agent will never bind the principal, except in connection with some act, which he is authorized to do. And in the present case, unless he had authority to execute such contracts, there is no act of the agent shown. This admission, then, is a Halted admission of the agent, and, for aught that appears in this case, might have been for his own debt, or wholly without any consideration. We think the case of this agent not very different from that of any pedler, employed to sell goods and take pay in other commodities, — or that of a mere clerk in a store, when the principal, or his general agent, is where he may be consulted. In siich case it would Hardly be pretended that the pedler, or the clerk, could bind the principal by such a contract as the ¡present. If that could be done, then such an agent could bind the principal to any extent in amount, and payable an indefinite time in advance. This would be putting it in the power of clerks and pedlers, employed to sell goods merely, very materially to extend the business of their principals. In such cases we think the person, who takes the contract of the agent in such a form, should be required to show that ¡the consideration paid came either fairly within the scope of the agency, or that it in fact came to the use of the defendant, .if he would recover the amount of him. Such is the doctrine of the case of Emerson v. The Providence Hat Manufacturing Co., 12 Mass. 237. That case is almost precisely in point, as an authority for the present determination. The result is, that judgment must be affirmed. The counsel for the plaintiff moved the court to reverse the judgment pro forma, and remand the case, in order to allow an opportunity to apply to the county court for leave to amend the declaration. The Court decided that they could not listen to such an application in the present stage of the case, — and especially as it ap [556] peared that such a course had been suggested to the counsel by the court below, which was at the time declined, the counsel choosing to abide the decision of this court, rather than submit to terms for such an amendment, and the consequent necessity of adducing proof of the consideration of the contract.