Metropolitan Washing Machine Co. v. Morris

The opinion of the court was delivered by Peck, J. The question is whether the defendant, Butterfield, is liable for the price of the one hundred and eight machines which arrived at Brattleboro about the 18th of June, 1864, or just previous to that, and which Morris took on the 5th of July following, and for which Morris, on that day, forwarded his note to the plaiutiffs. Butterfield’s guaranty to the plaintiffs was, for the “payment of all booh accounts and notes given for clothes-ivringers or other articles they may from time to time hereafter sell to O. S. Morris, town of Wilmington, county of Windham, state of Vermont.” When Butterfield gave the notice to the plaintiffs, on the 20th day of June, 1864, that his connection with Morris in the business had ceased, and that he should not be responsible for any more wringers ordered by Morris, neither Butterfield nor Morris was liable for the one hundred and eight machines. They had been sent by the plaintiffs to Brattleboro without authority from either of the defendants. They lay at Brattleboro at the risk of the plaintiffs, and as their property. Morris had, it is true, agreed a few days before they were sent, that he would take one hundred and eight more machines to be forwarded to him at such stations on the Vermont Valley Railroad in Windham county, and in such parcels, as he should direct. This was not a sale of the one hundred and eight machines; it was an executory agreement by Morris that he would thereafter purchase that number of machines. Nor as an executory agreement did it authorize the plaintiffs to forward them. The agreement contemplated that they were to be sent in parcels from time to time as Morris should thereafter order, at such stations in the county on the Vermont Valley Railroad as he should from time to time order or direct. Although the construction of the agreement would be that Morris should order them in a reasonable time, yet the plaintiffs had no right to send them and charge Morris with the price, until he should order them. If Morris neglected entirely to order them, the plaintiffs could not [398] make him liable for the price of them. They could only hold bins at most in that event, for damages for his refusal to order them. If the machines had already been accepted at Brattleboro when Butter-field gave the notice, then at that time he would have been liable for them on his guaranty. It is claimed on the part of the plaintiffs, that what transpired on the 18th of June, the day the defendants-learned that the machines had been forwarded to Brattleboro, amounted to-an acceptance. The referee reports that on that occasion Butterfield', desirous of ending his connection with the business and of being relieved from further liability upon his guaranty, had an interview with Morris, when Morris told Butterfield he had not ordered these machines, and agreed that they might remain: at Brattleboro under Butterfield’s control until Butterfield could ascertain whether he was holden for them upon his guaranty, and that if Butterfield should find he was so holden, he might take the- machines and return therm In this state of things Butterfield, two days after, gives the notice terminating his guaranty, and immediately receives the reply that when he pays the two prior notes, (which two notes did not include the price of the one hundred and eight machines,) he could have his guaranty. It does not appear that Butterfield ever interfered with the machines, or took possession of them ^ and the understanding between him and Morris that they should remain under the control of Butterfield for the purpose stated, was not an acceptance. The intent and purpose of it was that they should not be accepted. As Butterfield and Morris had neither of them become liable for the machines when Butterfield gave the notice to the plaintiffs, the subsequent acceptance of them by Morris o-n the 5th of July, did not operate to charge Butterfield; unless it was the duty of Butterfield to have notified the plaintiffs that they had not been accepted when he gave the notice determining his guaranty. If this was a matter peculiarly within the knowledge of the defendants, and the facts such that the plaintiffs were justified in assuming that the machines had been accepted, it would have been the duty of Butterfield to have apprised them to the contrary. But the plaintiffs must be taken to have known that they sent the machines without authority, and it was their business to have known whether they had been accepted, [399] before they had a right to assume the acceptance of them by the defendants or to rely on the liability of Butterfield upon his guaranty. The fact that Butterfield soon after he entered into the guaranty became interested with Morris in the business, does not vary the result; as the defendant Butterfield, when he gave the notice, informed the plaintiffs that he had sold out his interest to Crozier. In view of the circumstances under which the one hundred and eight machines had been sent to Brattleboro, Butterfield, when he received the letter of the 28th of June from the plaintiffs informing him of the extent of his liability, had a right to rely on it. He had a right to suppose the plaintiffs understood the matter as it really was, that no liability had attached in reference to these machines. The general agent of the plaintiffs received the notice from Butter-field and directed the clerk to answer it. The fact that the clerk who wrote the reply did not know that the one hundred and eight machines had been sent, was unknown to Butterfield, and can not control the question of his liability. ■ Had the machines been sent in pursuance of an order from the defendants, or either of them, But-terfield would have had reason to suppose the statement in the letter as to the amount of his liability was a mistake, and it would not have estopped the plaintiffs from asserting their whole claim. No liability was incurred for these machines till Morris and Crozier took them on the 5th of July, and then it became a debt against Morris and Crozier, and not against Morris and Butterfield. The plaintiffs having suffered the machines to lie at Brattleboro till the 5th of July, and then to be taken and appropriated by Morris and Crozier, must seek their remedy on them and not on Butterfield. It is claimed on the part of the plaintiffs that if Butterfield is not liable for the whole debt, a judgment should be rendered against both defendants for the amount of their joint liability and a separate judgment against Morris for the residue, as Morris is liable for the whole debt. At common law in actions on contract the plaintiff must recover against all the defendants or against none of them, and can not recover separate judgments differing in amount against each. The provision of the statute (Gr. S. p. 272, § 78,) that in such actions, “the plaintiff shall be entitled to judgment against such [400] defendants as may be defaulted, and against those who shall upon trial be found to be liable, notwithstanding it shall be found upon said trial that all the defendants in said action are not jointly liable,” does not warrant separate judgments against the several defendants. The provision in relation to actions of account between partners, (G-. S, p. 843, §§ 13 and 14,) authorizing the court to render such judgments, is confined to actions of account between partners, anc! does not extend to actions of assumpsit. Judgment affirmed.