Joy v. Walker

The Opinion Of the court was delivered by Redfield, Ch. J. This is an action of account for not ren [261] dering a just account while the defendant was plaintiff’s bailiff of his farm in Townshend, called the “ old hill farm,” for one year from the 22d March, 1852, and also of nineteen cows for the same time and to be returned at the end of the term, and also of nine tons of hay to be returned in kind at the end of the term. A question is made whether the plaintiff can under the declaration claim an account for money paid out by him to procure materials or work in carrying on the farm, such as pigs, grinding corn, and the furnishing of seed to be used on the farm, turnips, which seem to have been used on the farm, fed to the stock probably, keeping cows, calves and horses, which seems to have been when the plaintiff kept stock which of right should have been kept on the products of the farm, corn taken for the defendant’s family being the product of the farm, which comes into the same category, and potatoes taken for his family. The wood not left in sugar house is resisted upon other grounds. So also of the hay not left on the farm and cows not kept. It is urged too that the plaintiff charged the defendant for keeping two horses out of the same hay in the plea in offset and was allowed to recover, and that this should preclude him from claiming to recover on other grounds in this action. In considering these questions in detail we do not esteem it necessary that the declaration should specify all the items for which the defendant is called to account, or indeed the subject matter of each item, but only the transaction out of which the account is claimed. The defendant has no occasion to know the items of the account in order to prepare his defense. It is not to the separate items, or to the separate series of items to which in this action the defendant can plead. It is to the contract or relation out of which the account is claimed that a plea in bar can be made available. The items are to be met and answered before the auditor. One defense proper to be made there is that the items do not fairly consist with the contract or relation forming the foundation of the action. Hence these items were properly enough objected to on that ground. But it seems to us that most of them are connected with the carrying on the farm fer the joint benefit of the parties, and that they are necessary to be taken into the account in determining [262] the profits, and whether the defendant has given an account of what he received “more than his just share” The seed certainly goes into that account. This is expressly decided to form an element in the account of profits of a farm. And the marginal note ire Ganaway v. Miller, 15 Vt. 152, cited in argument, is that the expense of seed may he recovered in an action of account under a contract for cultivating a farm and dividing the profits and produce. What the judge says in regard to the necessity of specifying these item's in the declaration is expressly contradicted by what is before said, that this is part of the account, and by what follows, that as the auditor finds that the produce had been shared equally it was to be presumed the seed had been adjusted. The same reasoning will apply to the potatoes furnished to be fed out on the farm and the pigs and the' grinding com. They are necessary to he taken' into account in determining the amount of profit and to which party it belongs. The declaration does specify the hay and there is no more difficulty in adjusting the account than if the hay were money capital put into the concern, and those matters are' always adjusted in settling a partnership account, and the declaration never counts upon the items of the partnership account, and not always upon the. capital put in by either or both parties. The charge for keeping horses, cows and calves seem to be such animals' as were to be kept on the farm, but which the plaintiff took and kept himself by consent of defendant. We do not see how this would excuse the defendant and entitle him to keep the hay or half of the hay which these animals would have eaten and which the plaintiff had furnished out of his own barn. This would certainly be inequitable; nor do we think it the legal result of the facts reported. Nor does it seem to us that this item is really a claim for damages for not performing a special contract. It seema to us to be nothing more- than a claim- for the hay which the plaintiff put into the common concern, by keeping these cattle which it belonged to the joint concern to keep. It really stands very much in the same condition as the seed and other things put on the farm by the plaintiff and consumed, and for which he is entitled to he allowed as so much capital put in. So too of the charges for corn and potatoes used by the defendant! and his family which by the contract' he- had no right to use. This [263] is only charging the defendant with such of the avails of the enterprise as have already come to his use. This would seem indispensable in determining whether he has received more than his just share. The claim for -not leaving wood in the sugar house does not appear to be a part of the carrying on of the old hill form under the contract. And the plaintiff having obtained an allowance in offset of the item for keeping the defendant’s horses out of the joint hay, which mi^ht probably have been more properly claimed in this action, will not, We think, affect ’his claim here beyond the amount there allowed. The poultry seems to have formed part of the enterprise. And this part of the‘contract being later will make no difference. The •whole was so blended that separate actions cannot be maintained*, Judgment for the plaintiff on report, deducting the charge for wood.