Hale v. Jones

[229] The opinion of the court was delivered by Pierpoint, Ch. J. The principal question involved in this case is, whether the action of general assumpsit can be maintained upon the facts shown in the bill of exceptions. It is objected on the part of the defendant, that the sum of $300, part of the contract price for the labor to be performed by the plaintiffs, was to be paid by a note due in one year from May 1, 1873; that this suit was commenced before the expiration of such time, and that less than $300 then remained unpaid. In one part of the exceptions it is said that part of the contract price (referring to the $300) was to be paid in defendant’s note due, &c.; but in the same connection it is said that the contract was in writing, and such writing is made a part of the exceptions, and a copy is annexed. On reference thereto, it appears that the contract was that the $300 was to be paid by a promissory note approved by the said Sale Msh, to be made payable^ &c. The language of the contract becomes material in determining the right to maintain this action, as it is well settled in this state, that if the agreement is to give time for payment, upon the debtor’s giving a note with surety, if such note is not furnished, the creditor may sue at once on book or in general assumpsit. Rice v. Andrews, 32 Vt. 691. But a different rule is said to prevail when the debtor is only required to give his own note. In considering the language used in this contract, the inference is almost irresistible, that the parties contemplated something-more than an ordinary note of hand of the defendant — something-more than the naked obligation of the defendant to pay; that they had without a note, else why the form of approval ? Clearly, the time was not to be given unless they had a note that they approved of — were satisfied with. They might well say, under this contract, that they were entitled-to a note that would give them some security beyond that of the defendant alone: and we may well infer that the County Court so regarded the* contract, from the fact that the judgment-was for the plaintiffs; and this we the more readily do, from the fact that the defendant honestly owes the money, and the objection to a recovery is purely technical. After the work was completed, the plaintiffs demanded a note [230] according to the contract; but the defendant refused to furnish it, alleging that the contract was not completed on their part; but the case finds that the plaintiffs’ evidence tended to show that it was; and from the judgment, we must assume that the County Court found it to be so. The defendant having refused to furnish such a note as the plaintiffs had a right to demand, and did demand, we think this action can be maintained. This view of the case renders it unnecessary to consider the question of the application of payment. Judgment affirmed.