Victor Sewing Machine Co. v. Weeks

The opinion of the court was delivered by Royce, J. The contract under which the defendant received the machines charged in the plaintiff’s specification, provided that he should sell all machines consigned to him under said agreement, and remit for the same within four months from the date of shipment; and upon failure to sell and remit, the plaintiff might at its option at any time after four months from date of shipment, charge the defendant with all machines that had not been satisfactorily settled for, and that such amount or amounts should be immediately due and collectible. The auditor has found that the machines charged were received by the defendant more than four months before the bringing of this suit; and had [344] never been accounted for by the defendant, and that payment for the same had been demanded. Upon the foregoing facts, it is claimed that no recovery can be had in this form of action — that the action should have been assumpsit or trover. We think that under the contract the plaintiff had the right to treat the machines as sold to the defendant at the time they were charged to him on plaintiff’s books. By the contract, defendant agreed that they might be so charged in the contingency named, and that the amount so charged should be due and collectible on demand. The case of Kidder v. Sowles & Kinsman, 44 Vt. 304, which is relied upon by the defendant as an authority, is not analogous to this. The defendants in that case received the property charged for, to sell on commission. There was no provision in the contract that allowed the plaintiff in any event to treat the property as sold to the defendants, and the property had not been sold by them at the time of the commencement of the suit. Hence the court held that the action would not lie. It is said in Halt & Chase v. Peek Co. 10 Vt. 474, that property may be charged on book by reason of the accountability of the party in respect.to .it, although no right of action may exist at the time. In this case the right of action existed at the time the charge was made. It is claimed that the auditor erred in admitting the testimony of the witness Johnson. Admitting that the question of the admissibility of that testimony can be reviewed in this court, we see nothing in his testimony as detailed in the report that could affect the question of the defendant’s liability. That portion of his testimony relating to plaintiff’s practice in sending circulars to its agents, was wholly immaterial, for the reason that the circular sent to the defendant was no part of the contract. So, too, plaintiff’s practice as testified to by that witness, in affixing dates and signatures to papers, had no tendency to prove or disprove any fact in issue between the parties ; and the rule is, that in order to reverse á judgment for the reason that illegal evidence has been admitted, it must appear that the excepting party has, or might have been, injured thereby. Judgment affirmed.