Vermont Marble Co. v. Mann

Peck, J. This is an action of book account in which tbe plaintiff seeks to recover for a quantity of marble, Tbe plaintiff’s claim' consists of a. single item of $670,44. Tbe marble was sold and delivered under a special contract to furnish marble at a specified price per foot sufficient to construct a certain sidewalk which tbe defendant bad contracted to build for tbe United States Government. Tbe marble was by agreement to be measured after it should be all laid in the sidewalk. It was delivered and tbe walk laid and completed about tbe 6th of August, 1860, and tbe marble measured by tbe plaintiff and tbe defendant according to contract. This action was commenced August 26th, 1861. Tbe first objection made to a recovery is, tbat tbe term of credit bad not expired at tbe commencement of tbe suit. If this is tbe fact tbe objection is fatal, as there are no other dealings 702 between the parties to uphold the action. The auditor finds that at the time these parties made the contract it was understood and agreed that the defendant should pay the plaintiff for the marble when the defendant should receive his pay from the United States upon his, the defendant’s contract to construct the walk. The defendant at the same time informed the plaintiff that he would be entitled to and should expect to receive his pay for constructing the walk immediately on the completion of it. The auditor finds that it was in the contemplation of both the parties that the job would be completed in the summer of 1860, that the work would be accepted by Young, the agent of the government, and the defendant would thereupon and without protracted delay receive his pay. It is claimed by the plaintiff that this amounts to an agreement by the defendant to pay as soon as the defendant should be entitled to his pay from the government, and not an agreement to pay when he should actually receive his pay. We think this is not the fair construction of the contract. The contract as found by the auditor is to pay when the defendant should receive his pay from the government. The marble was going into the government works, and it is obvious that so far as the term of credit was concerned, the parties looked to the fund coming from the government as the means of payment to the plaintiff. It is true the auditor finds that it was in the contemplation of the parties that the job would be completed in the summer of 1860, and that thereupon the defendant would receive his pay of the government without protracted delay but this expectation is not inconsistent with, nor does it control the express stipulation. The plaintiff knew as well as the defendant the chances of a time intervening between the completion of the job and the actual payment by the government; and it is evident that both parties in stipulating for a credit acted in reference to such an event. If the defendant represented truly the time when he would by his contract be entitled to payment, and proceeded with reasonable diligence to complete the job, or completed it by the time contemplated by the plaintiff and defendant, and was guilty of no unreasonable delay in causing it to be accepted and procuring payment from the government, the credit stipulated 703 for in the contract between these parties would not expire till the defendant had received payment from the government. • We do not say that the plaintiff would have lost his claim had the government wrongfully refused ever to make payment; we speak in reference to the case before us. It appears that the defendant represented to the plaintiff correctly as to the time when he would be entitled to receive payment from the government, and that the job was completed and accepted about the time the parties contemplated. It does not appear expressly that the defendant was guilty of negligence in procuring payment; it is left to inference from lapse of time and the absence of proof as to what efforts he made for that purpose, together with the fact that the defendant made a further contract with the government. The plaintiff’s demand became payable whenever the defendant by due diligence might have received payment from the government. If the defendant did any act or entered into any new arrangement which had the effect to postpone the receipt of the money from the government, the plaintiff’s claim might become payable before the actual receipt of the money by the defendant. It appears that when the work in question was accepted in September, 1860, the agent of the government concluded to have an alteration made in it, and employed the defendant for a new consideration to make such alteration. This the defendant performed that fall. It also appears that subsequent to this, the agent employed the defendant for an additional compensation, to take up the walk and relay it, in consequence of injury done to it by the frost. This work the defendant completed in the summer of 1861, and it was accepted by the agent. On the 19th of December, 1861, after the commencement of this suit, the defendant received payment of the government, about $2900. for the work done under these three contracts. This action was commenced August 26th, 1861; so that nearly a year elapsed after the defendant was entitled to payment from the United States Government, before this suit was commenced. We think in the absence of any proof to show what efforts the defendant made to procure payment, it is fairly to be presumed that the new contracts for additional work upon the same walk caused a delay in the payment by the government for the work done under 704 the first contract, either by causing the government to decline payment till the whole work was finished, or by inducing the defendant to neglect to call for payment till he had completed the entire work. This delay having been caused by the act of the defendant, the stipulated credit had expired and the defendant has no right to insist that the action was premature. 2. It is also objected that the draft drawn by the plaintiff in favor of Page, cashier of the Rutland bank, on the defendant for the amount of this debt, and delivered to Page as collateral security for a debt the plaintiff owed and still owes the Bank, and, as the defendant claims, accepted by the defendant, is a bar to the suit. This draft was drawn at sight and presented to the defendant for payment or acceptance, just after the marble in question was measured. The defendant told Page he would pay it when he received his money from the government for this work done under the first contract. There is no doubt but that a parol acceptance is binding, and no doubt but that an acceptance varying the time of payment from the time specified in the bill, is as binding as if absolute according to the terms of the bill, if the holder accepts it. The only doubt in this case is whether Page received the defendant’s promise as an acceptance, and whether the parties so understood and treated it. I think the facts reported show that it was so treated, or at least that the transaction amounts to such an equitable appropriation of of the fund to the use and benefit of the bank, that the plaintiff ought not to be allowed to collect this debt and divert it from the bank. But the majority of the court do not give to the facts reported on this point precisely the same legal effect that I should be inclined to. But we are all agreed that there is sufficient doubt whether the defendant may not hereafter be held upon that acceptance, to warrant the court in imposing a rule upon the plaintiff which shall protect the defendant from such liability. The judgment is affirmed under a rule that the plaintiff shall not. have execution till he causes the draft to be deposited with the clerk for the defendant, or a release by the bank to the defendant of all claim upon him by virtue of the draft or his acceptance or promise to pay it to the bank.