Phelps v. Hubbard

The opinion of the court was delivered by Dunton, J. We do not see how the plaintiff’s right to recover the balance due for the two lots of tobacco forwarded to the defendant by railroad and received by him, can be questioned, upon the finding of the referee that the plaintiff had performed the •contract upon his part as to all the- tobacco in question. The referee finds that the third lot of tobacco was packed according to the directions of the defendant, and ready for delivery upon the premises, where it was agreed that the same should be delivered to the defendant; but that the defendant never paid, or offered to pay, for the same, and refused to pay the balance due on the first two lots of tobacco until the last lot should be forwarded to him by the plaintiff. The plaintiff had the right, under the contract as found by the referee, to retain the possession of the last lot of tobacco until it was paid for. In such cases a vendor can never be compelled to part with his property without payment, nor the vendee to pay for the same without receiving it. The payment for and receipt of the property are contemporaneous acts, and the rights of the parties in this respect are reciprocal. All that is required of a vendor in a case like the one at bar, is to be present with the property at the time and place agreed [494] upon, ready to deliver the same to the vendee upon the payment by him of the agreed price. This the plaintiff did, but the defendant failed to pay for and take the tobacco, and thereby broke the contract between himself and the plaintiff; and the contract for the three lots of tobacco being entire, and the two first lots having been delivered and partly paid for, was valid and binding, and therefore the defendant subjected himself to the liability of being compelled to respond in damages for such breach. After keeping the tobacco a reasonable time for the defendant, and his refusal to take the same, the plaintiff had a right to sell it for the most he could get, and to call upon the defendant to pay him the difference between what he got for the tobacco and the contract price, such difference being the measure of damages in this’case. Chit. Cont. 431; Parsons Cont. 484; Jones v. Marsh, 22 Vt. 144. This the case finds that the plaintiff did. The remaining question is, whether the plaintiff is entitled to recover these damages under the common counts. Had the case not been referred, this objection might, perhaps, be one of some difficulty for ,the plaintiff to overcome, but it has been held by repeated decisions in this State, as is so well stated in Roberts’s Digest, page 600, that “ where a pending action is referred by agreement of parties under a rule of court, though the rule be that the case be heard and decided according to law, it is the cause of action which is referred, and not the particular form of the declaration or any particular issue formed; and the referee is not bound thereby, but may try the case upon its merits and award upon the subject-matter embraced in the submission; and judgment will be entered upon the report whenever, without changing the nature of the action, the déclarations or pleadings could be so amended as to accommodate them to the facts found by the referee.” The contract for the sale of the three lots of tobacco being an entire contract, as before stated, and this suit being brought to recover pay for the tobacco sold under and by virtue of such contract, we think the declaration was clearly amendable, and that the court had the authority to allow the plaintiff to file an additional count, declaring specially upon the contract in question, and alleging the breaches thereof proved on [495] the trial before the referee. Haskins v. Ferris, 23 Vt. 673; Waterman v. Connecticut & Passumpsic Rivers Railroad Co. 30 Vt. 610; Boyd v. Bartlett, 36 Vt. 9. Judgment affirmed.