R. C. Bowers Granite Co. v. Thomas Farrell & Co.

THOMPSON, J. This was an action of special assumpsit in two counts. There was a verdict and judgment for the plaintiff for five hundred and forty-one dollars and forty cents damages. It appeared that in the summer of A. D. 1890, the plaintiff and defendant had negotiations as to future business. The plaintiff corporation had its principal office in Montpelier and was engaged in buying and selling granite, and delivering it in different parts of the United States and Canada. The defendant was engaged in the manufacture of granite at Quincy, Massachusetts. At the commencement of their negotiations it was understood that the plaintiff should pay for all goods which the defendant should manufacture for it within thirty days of the date of delivery. Under this arrangement, the plaintiff, from time to time, sent drawings of various jobs of work which it wanted, to the defendant, with a request for prices, and the defendant made offers, some of which were accepted by the plaintiff, and the defendant manufactured the articles ordered and delivered' the same on the cars at Quincy, to be shipped to such points as the plaintiff ordered, and up to and including December 6, 1890, paid the defendant according to their understanding, within the thirty days after each order was delivered. November 5, 1890, the defendant delivered onboard the cars to the plaintiff, a granite monument which was shipped to Cincin [317] nati, Ohio, for which the defendant was to receive three hundred and sixty dollars. This was paid for Dec. 6, A. D. 1890, and is the monument in dispute in the first count. At this time quite a number of other orders for monuments had been sent the defendant by the plaintiff, and the defendant had agreed to furnish the same at prices agreed on between them, among which was one for which damages are claimed in the second count. The monument in controversy in the first count did not suit the plaintiff’s customer for whom it was ordered, of which the plaintiff notified the defendant by letter dated December 20, 1890, claiming that it was made from inferior, stock and was defective in other respects. The defendant on trial claimed that the plaintiff had a reasonable time to examine it before it was paid for, and thereby it was accepted under the contract, and that the plaintiff had subsequently so dealt with it that in law it was an acceptance; while the plaintiff claimed that at the time it was paid for he had not had a reasonable time to inspect and accept it, and that what was subsequently done with it was done with the assent of the defendant. The court instructed the jury as to the law applicable to the first count so that no exception was taken by either party. The defendant continued to deliver monuments and other granite to the plaintiff, some in December, 1890, some in February and March following on contracts between them, and at times called on the plaintiff to pay for the same as it had agreed, which the plaintiff refused to do unless the defendant would allow it for what was paid for the monument in dispute under the first count, which the defendant refused to do. And thereupon the defendant declined to fill any of the ordersfit then had agreed to fill for the plaintiff, among which is the order named in the second count. The plaintiff procured the monument elsewhere at a greater cost, and the jury allowed the plaintiff the sum of forty-six dollars and forty-four cents under the second count. The defendant requested [318] the court to charge the jury that if the plaintiff refused to-pay for the goods furnished according to the agreement, that thereafter the defendant was not bound to.continue to fill the orders it had agreed to furnish, and that the plaintiff could not recover under the second count. The court declined to-charge as requested, to which the defendant excepted. The defendant concedes in argument that, unless these transactions are held to constitute an entire contract, there was no error in the refusal to charge as requested. The general understanding that all goods manufactured by the defendant for the plaintiff should be paid for within thirty days from the delivery thereof, did not in itself constitute a contract by which the defendant was obligated to manufacture and deliver any goods to the plaintiff, nor by which the latter was bound to take and pay for any. It was only after the plaintiff had furnished drawings to the defendant for the respective jobs of work, obtained the price at which it would manufacture and deliver the goods specified, and had accepted the defendant’s offer at the price named by it, that a binding contract was consummated between them. Therefore a majority of the court hold that each offer thus negotiated and accepted was an independent contract, into which the general understanding in respect to-payment was incorporated by implication, and that each, in respect to performance, must stand alone, and be performed irrespective of the conduct of the parties in regard to the others. The case can be disposed of upon another ground. It is-to be presumed that the evidence was such as would support the verdict for four hundred ninety-four dollars and ninety-six cents for the plaintiff, on the first count. It must, therefore, have tended to prove that the plaintiff paid the three hundred and sixty dollars under a mistake oi facts or unpler such circumstances that it did not operate as an acceptance and payment for the monument described in that count, and [319] so the defendant held the same as so much money had and received for the plaintiff’s use. This being the' case the latter, if it so directed, had the right to have it applied on whatever might be due the defendant from it, on the contracts which the defendant had performed. The refusal of the defendant to pay was not absolute, but conditioned upon the refusal of the defendant to thus apply the three hundred and sixty dollars. It does not appear that the three hundred and sixty dollars was not sufficient to pay the defendant all that was due it from the plaintiff at the time of the refusal to manufacture and deliver the monument mentioned in the second count. If sufficient, the defendant was liable for the damages sustained by the plaintiff by reason of such refusal, if the transactions were held to be an entire contract. The record standing thus, it must be presumed that the evidence was such as to require the refusal of the instruction to the jury, requested. Fosters Exr. v. Dickerson, 64 Vt. 233, and cases there cited. Jitdgment as to the jorincijal debtor affirmed, with costs> and as to trustee, judgment affirmed without costs.