Davis v. Petit

The opinion of the court was delivered by Isham, J. The contract between these parties, that their mutual accounts might be paid by each other in work from their respective shops, was made in April, 1849, and included the small balance which was then found due to the plaintiff. In relation to the accounts which subsequently accrued, that contract is binding between them, and the defendant is not liable to pay the plaintiff’s account, except in the manner they had stipulated. That mutual promise is a sufficient consideration to render that contract obligatory. If the case rested on that contract alone, the plaintiff would probably be entitled to recover the balance which was found due to him at the time of making that arrangement, as the agreement, in relation to that balance, would be a mere accord without satisfaction. We find from the case, however, that the parties continued them dealings under this contract until the last of June, 1852, when the plaintiff notified the defendant that he would take no more of his work. As a subsequent account accrued under that agreement, much more than is sufficient to pay that former balance, we think, so much of the defendant’s account, as is necessary for that purpose, should first be applied in that manner; so that no recovery can be had in this action for that balance. The contract was not repudiated by the plaintiff until after this account had accrued, and the defendant, as the auditor finds, has ever been ready to pay the balance due the plaintiff, in work, from his shop, as they had contracted. No action can be sustained by the plaintiff to recover this account, until after a demand is made and the defendant has refused or unreasonably neglected to perform the services according to the stipulations of his contract. Russell v. Ormsbee, 10 Vt. 274. The judgment of the county court is affirmed.