Holmes v. Laraway

The opinion of the court was delivered by MUNSON, J. The referee has not in terms reported that the order in question was accepted, but in submitting certain facts with a view to having that matter determined by the court, we think he has in effect found an acceptance. It appears that Clark’s agent presented the order to the defendant for acceptance, and that the defendant said, “ I will accept this order, for it is good, and will fix it with Holmes if on settling I should not owe him so much.” It is found that by this the defendant meant, and was understood to mean, that he would pay the order in any event. An unconditional acceptance of the order is thus established. The plaintiff had bought lumber of Clark under an arrangement that he should pay for it by an order on the defendant, if the defendant was. willing; and the order accepted as above stated was given in pursuance of this understanding. It will be noticed that by this arrangement the plaintiff’s indebtedness to Clark was to be satisfied by the acceptance of the order, without regard to its payment. At the time of acceptance, therefore, both the plaintiff’s indebtedness to Clark and the defendant’s indebtedness to the plaintiff were extinguished. After this, the defendant’s indebtedness was to Clark, who had taken his acceptance in lieu of a claim upon the plaintiff. Clark could not after-wards undo the transaction by returning the order to the plaintiff, nor could the plaintiff enable him to accomplish this by con [178] senting to its return. Tlie original liabilities could not be revived without the concurrence of all the parties interested. The defendant still owes the order to Clark, and does not owe the account upon which the plaintiff has brought suit. The order was drawn for the amount due the plaintiff as shown by his book. The referee has disallowed a small item included in the plaintiff’s charges, so that the defendant’s acceptance overpays the plaintiff’s account as now ascertained. In view of this result, the referee presents an alternative finding which entitles the defendant to a small balance upon the disposition now made of the order by the court. But as no plea in offset was filed, the defendant cannot be given judgment for this balance. Fulton v. Wiley, 32 Vt. 762; Warren v. Caryl, 61 Vt. 331. Judgment reversed and judgment that defendant recover his costs.