Straw v. Clifford

The opinion of the court was delivered by Bennett J. Item No. 18 in the defendant’s accountj was properly disallowed. The claim for costs which accrued in an arbitration is simply a claim for damages for the breach of an executory contract, though they may be measured in dollars and cents, it is true, but this does not make the claim a proper one to be adjusted in the book action. The more important question is, can the defendant use his account against Bryant, as a defence to this action brought by Bryant & Straw ? Though at the time the contract was entered into between Bryant and the defendant, Bryant and Straw were partners, yet this was not known, at the time, to the defendant, and he supposed he was contracting with Bryant alone; and during the performance [667] of the work he supposed Bryant was alone interested, and had no knowledge of a partnership; and it is found that the defendant was induced to enter into the contract with Bryant, because he owed him a balance on book. Bryant ostensibly acted for himself. Nothing was said about his having a partner, nor was it generally known that he had one. Though Straw was present when the contract was made, talked about the work, and made some estimates, and eventually assisted in doing the work; yet this was consistent with his being a journeyman to Bryant, in which capacity he had served him for about one year before. This was no notice of the existence of the partnership to the defendant, nor enough to put him on inquiry. Though an action may, on such a state of facts, be brought by the partnership, yet the court will see that it is not done to the prejudice of the defendant, and he will be allowed the same defence, whether by set off or otherwise, that he might have had, if sued by Bryant alone. See Hilliker v. Loop, 5 Vt. 121, and cases there cited; and the set off need not have arisen, in this case, after the contract was made with Bryant. In the case of Lime Rock Bank v. Plimpton et al, 17 Pick. 159, it was held, that, in a suit by the principal, the defendant could not be defeated of a legal set off against the agent who loaned the money, which existed at the time the loan was made. The defendant was allowed to detain, to the amount of his claim, against the agent. As, in the case at bar, the defendant was induced to make the contract with Bryant, on account of his claim against him, it would be eminently unjust to deprive him of his defense by reason of this action being in the name of Bryant & Straw, when Straw must be regarded in the light of a secret partner when the contract was made with Bryant and the services rendered. The judgment of the county court is reversed, and judgment rendered, on the report, for the defendant to recover his costs.