Waterman v. Stimpson

By the Court. There is no question in this case, but that the article which constitutes the item of charge, for which this action is brought, was really the property of the plaintiff at the time it was taken to defendant’s store, and that the defendant not only should, but that he expected to accodnt for the same, to some one. And the question is, whether the plaintiff is the person to whom the payment should be made. It is insisted by the defendant, that the property' was received on a contract previously made by him, with one Emery W. Miles, and that he has rightfully passed it to his credit, on his books of account. The auditor has found, that a few weeks previous to the delivery of this property, the defendant and Miles made an agreement, in which the defendant was to let Miles have a hog, provided he would pay him therefor, and for a previous account he had, in this article. The auditor also finds, that about three weeks before the salts were taken to the defendant’s store, the defendant agreed with the plaintiff, in the presence of Miles, to let him have the same hog in exchange for salts, if any thing should happen that Miles should not take it. Thus far in this negotiation, there can be no difficulty in understanding the contract, or doubt as to the intention of the parties. Miles was to have the first privilege in purchasing the hog, by delivering salts enough to pay for it, with his previous account. If he failed to do that, then the plaintiff had the right of being the purchaser, and paying for it in the same way. After this contract, it appears that the plaintiff procured one Sawyer to take his team, and go with him and take two boxes of [511] salts to tbe defendant, amounting to about 631 pounds. The salts were removed into the store, and after one box had been weighed, and they were getting in the other, the plaintiff inquired of the defendant if he was going to send the hog, and was then informed that there was not salts enough'to pay Miles debt and for the hog, and that he should not send it. The plaintiff, at that time, claimed the salts as his, and demanded them, or payment for the same, but this the defendant refused to do, and gave credit for the salts to Miles, on his account. Thus far there can be no doubt about the proper result in the case. The plaintiff had made a contract for the hog, and to pay for it in salts, if Miles did not take it. He took the salts there when Miles was not with them, and there is nothing to show that Miles ever spoke to him to furnish them for him, or that he knew he was going there with them. So far as the plaintiff is concerned, the inference is to be drawn, that he took the salts there on the contract he had previously made, that he might be the purchaser of the hog, if Miles did not take it. The difficulty in the case, arises from the declaration of Sawyer to the defendant,-when they first drove up to the store, when Sawyer went in and told the defendant, that he had brought some salts for Miles. The plaintiff was not present when this statement was made, nor does it appear that plaintiff ever knew that such statements, or declarations, had been made to the defendant. And certainly, to make that available in defense, the defendant should have shown that fact, and it should have been found, as a fact in the case, affirmatively by the auditor. Thát inference this court is not authorised to make, or draw from the evidence, and unless found and stated in the report of the auditor, it must be laid out of the consideration of the case. It also appears, that Sawyer told one Smith that the salts were Miles’s. In this instance, the auditor has found that the plaintiff was a few feet from them, but going the other way. If the declaration to Smith could in any event have any effect, it is subject to the same objection as the other. The auditor has not found that these declarations were heard, or came to the knowledge of the plaintiff, and consequently should not enter into an investigation of the case. Removing that consideration from the case, there seems but little ground of dispute. The plaintiff never delivered the salts as the property of Miles, or on his account, but [512] claimed them as his own, before the delivery was perfected. The defendant informed the plaintiff that he should hold them, on the contract he had made with Miles, and pass them to his credit. This, without the consent of the plaintiff, he had no right to do, and when the plaintiff refused so to deliver them, and demanded the salts, or payment for them, the defendant was bound to return them, or the plaintiff might treat the same as sold, and charge him accordingly. We have no hesitancy in saying, that the plaintiff has done nothing whereby he should lose the salts, or that would justify the defendant in passing them to the credit of Miles, and that the plaintiff has a good claim on the defendant for their value. The only matter, about which we consider there is any serious question, is, whether this form of action is proper. The salts have been sold by the defendant, for the'sum reported by the auditor, and we think the inference proper to be drawn, that the salts were taken by the plaintiff to the defendant, on his previous contract, and the defendant’s refusal to pay him, or let him have the hóg, gave him a right to charge for the property he had so retained. Certainly he could have sustained general assumpsit for the value of the salts. The law will raise a privity of contract for that purpose, and will equally so, for any action in form ex contractu, adapted to the circumstances of the case, and we see no inconvenience in sustaining this action. It is not extending the action any further than the case of Flower Brook Manufacturing Co. v. Buck, 18 Vt. 238. The result is, that the judgment of the county court must be affirmed.