Geo. A. Thayer & Co. v. Ballou

Aldis, J. The questions presented to us depend rather upon the construction to be given to the auditor’s report, than upon the principles of law applicable to the facts found by the auditor. If an absolute credit of six months was given to the defendant, it is clear the plaintiffs cannot recover. [238] If the contract was, a credit for six months if Eli Ballon’s guaranty was furnished, but no credit for any period of time if his guaranty was not furnished, then the plaintiffs can recover. These conflicting constructions are put upon the report. The auditor says, that when Eli Ballou and Whitcomb had their interview, Ballou told Whitcomb that the defendant had no property, and would expect “a credit” or “time.” When the goods were selected by Dodge (the defendant’s agent) at the plaintiffs’ store, he alluded to his purchases at other houses upon a credit of six months. The defendant was represented as without capital, and under the necessity of obtaining goods upon a credit, and paying by the resales. This testimony tended to prove the conclusion to which the auditor states' that lie came, viz: that the plaintiffs expected to give, and supposed Dodge expected to receive, on behalf of the defendant, a credit of six months. This mutual understanding of the parties made a contract, though no express agreement was made in form or in words. So far, then, the minds of the parties mot. And this mutual understanding was derived from what was said between them on the subject, and from putting a natural construction on what was said. It was not mere conjecture or expectation formed in silence and without premises to sustain it. Was this understanding qualified by the condition, that if Eli Ballou did not give his guaranty, then the sale was not to be upon time ? The auditor saj^s that the plaintiffs did not notify the defendant, or Dodge, or Eli Ballou, that the credit would depend on Eli Ballou’s becoming legally liable for the debt, and that there was no conversation about it. We are unable to find from the report that there was any evidence tending to show anything said or done from which either party could have gotten such an understanding. “ The plaintiffs never intended to tie themselves so that they could not sue for the debt at any time, if it became precariousbut this intent seems to have been kept to themselves, not communicated to any one, and to have been inconsistent with what was said and expected as to the six months credit. The auditor also says, that the expectation of giving a credit on the part of the plaintiffs, and of receiving it on the part of Dodge, rested on the mutual belief that the credit of Eli Ballou [239] liad been given, and, substantially, that but for this belief the plaintiffs would not have sold the goods. The report further shows, that the credit of Ballou had not been given, that there was no fraud, false representation or artifice of any kind on the part of Ballou or Dodge, or the defendant, indeed, that nothing was said or done to lead the plaintiffs into the error. Whether they mistook the law and supposed Ballou’s word legally bound him, or whether they misapprehended what he said and supposed he was pledging his credit by an original and not a collateral undertaking, does not clearly appear. However the mistake arose, it appears to have been without fault on either side, and to have been shared alike by the plaintiffs and the defendant’s agent. Now this is the most favorable view of the report that can be taken for the plaintiffs. Upon the discovery of the mistake what would be the respective rights of the parties ? Could the plaintiffs say with justice, u the basis upon which I gave and you received the credit having failed, I have the right to treat it as a sale for cash, and demand immediate payment?” The defendant might reply, “ the mistake was as much yours as mine, more even, for it was for 3rou and not for me to know with certainty what security you had for the sale of the goods; again, if I had not had the six months credit I should not have bought the goods.” What did transpire between the parties on finding out their error, relieves us from the necessity of deciding as to these conflicting claims. Eli Ballou offered to return the goods on hand, and to pay for those sold. The plaintiffs refused this offer, and soon after, and without further demand, brought this suit. Clearly, they had no right to say you shall keep the goods, and shall pay us down for them. That would be visiting the mistake upon the defendant, as if it was his fault. If it gave the plaintiffs any right to treat the whole sale as a mistake and the contract as being ended, they could not reasonably ask the defendant to do more than to pay for the goods sold and return the residue. The plaintiffs would not do this, substantially would not take back the goods. If they would not put an end to the contract, clearly they could not make one for the defendant to suit themselves. If they chose to stand on contract, they could stand only on the contract as made. Between [240] affirming the existing contract, or putting an end to it and taking back the goods, there was no middle ground. Again, if the defendant had been in fault, (as by using false representations, etc.,) that would not have enabled the plaintiffs to have sued in assumpsit, or book account, till the expiration of the six months credit. So are all the authorities; 18 Vt. 235; 16 Vt. 108 and 164. Much less could the plaintiffs sue in such forms of action when there was no fault on the defendant’s part. A mutual and innocent mistake ought not to put the defendant in a worse condition than an actual fraud. It is said the plaintiffs might recover for the goods sold. 1. The report does not show that any goods were sold. The defendant’s father offered to return the goods on hand and pay for what had been sold, and that is all that appears upon that point in the report. 2. After such offer and refusal of it by the plaintiffs, clearly they would have no right to sue till they had offered to take back the residue of the goods, and had demanded pay for those sold. Without this there would he no disaffirmance of the contract; we do not decide that with it the action would have been maintainable. The decision in Hickling v. Hardy, 7 Taunton 311, stands upon a ground wholly distinct from the principle here involved. The defendant bought goods and gave the plaintiff a bill in payment. When the bill was presented for acceptance it was protested for non-acceptance. What then was the right of the drawee ? To sue instantly for the amount of the bill, That was the meaning of the contract. Now as to credit for the goods, that case shows none given but what was implied in taking the bill. The contract implied, in commercial law, from that was, if the bill is accepted the vendor shall have his pay when the bill matures, if not accepted he shall have his pay when acceptance is refused. That decision stands upon the implied contract of the parties. If there had been any express contract for credit for a definite period of time, it would have altered the case. In the view we take of this case the judgment must be reversed, and judgment rendered for the defendant.