Loomis v. Wainwright

'The opinion of the court was delivered by Boy-ce, Oh. J. This case is defended on two principal grounds ; —1. That the plaintiff has not shown himself entitled to any redress, as against the defendant, — and 2. That he cannot be redressed by this form of action. We consider, that the positions assumed in support of the first ground of defence are not tenable. The contract shown by the paper marked “ C ” did not profess to include all the creditors of [527] Deming, nor to include creditors in any other right, than that imported by the signatures. We think, the signature of R. Sander-son & Co. affected Herrick only as a member of that firm, and that "no fraud upon the other signers should be inferred from the simple fact, that he required security for his individual claim against Deming. Perhaps it might be otherwise, had he and Deming denied to the other signers the existence of the claim, or encouraged them' to expect, that it would be treated as if embraced within the contract. There was evidently a sufficient consideration for the contract, to render it binding as a temporary bar to suits by the creditors, who became parties to it. Among these were the two Wainwrights, who then held the notes against Deming, which were afterwards transferred to the plaintiff. At the time of the transfer the notes had apparently been long overdue, and were therefore subject, in the plantiff’s hands, to any defence, affecting their validity and operation, which would have been available as against the Wainwrights. And we think, the temporary bar then in force against the Wainwrights should be regarded as a defence of that character ; for otherwise the contract of the creditors might become illusory and fruitless to the debtor, as the benefit, for which he stipulated, could at any time be defeated by assigning the demands. It follows, that when the plaintiff received those notes in part payment for the horse, they were not, as they purported and as he believed, in a state to be immediately enforced by suit. He was deceived to his manifest injury, and the deception was legally imputable to the defendant. The alleged grounds of decision in Cornfoot v. Fowke, 6 M. & W. 358, do not conflict with this result, if, indeed, that case can be deemed in any material respect analogous to the present. It appears, that the plaintiff seasonably offered to rescind the entire contract, but the offer was declined. Under these circumstances he must have been entitled to a remedy in some form against the defendant. It remains to be determined, whether the action of book account can be sustained upon the facts reported. As one ground of objection, it is claimed, that there was an exchange of the horse for the three notes and the eighty six cents, rather than a sale, in the correct sense of that term. But the auditor expressly finds a sale, and none of the facts reported are inconsistent with that finding. [528] Indeed, in the absence of express evidence that an exchange only was intended, a sale might justly be inferred from the fact, that the trade was governed by a fixed price for the horse ; an agreed price being essential to a proper bargain, or sale, but altogether needless in the case of a mere exchange. There the commodities exchanged, whatever be their supposed value, are mutually received as equivalents for each other. It must be taken, then, that the horse was sold to the defendant at the price of fifty dollars. And for the price of such property sold and delivered it cannot be now questioned, that the action on book account may generally be supported. Kingsland v. Adams, 10 Vt. 201. Again, it is urged, that the plaintiff could not repudiate the Deming notes, unless he would avoid the whole contract; and that his remedy was upon the defendant’s implied warranty, that, the notes were what they purported to be, or else in case as for deceit. It is certainly a general rule of law, that if one party will avail himself of a right to rescind a contract, he must rescind it entirely, and not as to a part only. Fay v. Oliver, 20 Vt. 118. But in case of a sale, the proper application of the rule is to the property sold, when that consists of several particulars. The contract cannot thus be rescinded as to part of the property and left in force as to the residue. Such an alteration would be tantamount to making a new contract, and would require the concurrent assent of both parties. I am not aware, that the rule has ever been applied in the manner now claimed. But if the seller have been induced, through imposition effected by the other party, to accept that in payment, which proves to be no such payment as he had a right to expect, he is permitted to renounce it, and prosecute his claim for the property sold, as if no such payment had been attempted. Nor is it any objection to such a course, that a remedy might be sought upon some liability of the party in fault, growing out of the transaction. For whether such a remedy would sound in tort, or contract, the party deceived and injured is not bound to resort to it. Gilman v. Peck, 11 Vt. 516, and authorities there referred to. The remaining objection is, that there was no intention to create an indebtedness, nor any right to make the charge on book at the time of the sale. But the plaintiff need not then have contemplated making the charge, nor even have supposed, that he was entitled to [529] make it, provided the facts then existing, but of which he was not apprised, gave him the right to claim a balance as unpaid for the horse. It appears, that although for a few hours he thought he had received his whole pay, yet in truth he was not bound to consider himself paid. According to the justice and good sense of the case, therefore, his repudiation of the two notes against Deming should have relation to the sale and delivery of the horse, and avoid their effect, as payment, from the beginning. This would show a balance never paid, and a consequent right to charge the property on book. In the case of Nason v. Crocker, 11 Vt. 463, it was not claimed, that any deception had been practiced, or that either party acted under misapprehension or mistake. The contract of the parties was therefore to have effect precisely as they had made and executed it. On that ground the case is obviously distinguishable from the present. The result is, that in our opinion the plaintiff was entitled to sustain his action, and that the judgment of the county court should be affirmed.