Smith v. Coolidge

MUNSON, J. The referee reports that the defendant purchased of the plaintiff a quantity of maple sugar, and agreed to pay for it in confectionery, to be delivered to the plaintiff at South Londonderry, at such times and in such quantities as the plaintiff should thereafter order. It is also found, in regard to certain shipments of confectionery, that the price and quality of the goods were satisfactory to the plaintiff. [519] It is evident from these findings that a price was put upon the maple sugar and that the amount was to be paid in confectionery at the current rates. So the case presented is that of a sale in consideration oí a payment to be made in specific articles; and it is to be disposed of in accordance with the rules heretofore held applicable in such cases. In this state, an agreement to pay in specific articles is presumed to have been intended for the benefit of the debtor, and is held to entitle him to make payment either in the property named or in cash. But if the obligation is not met when due this option is lost, and the debtor must then make payment in money at the price fixed. The demand is after-wards treated in.every respect as if it had always been payable in money, except as regards negotiability in cases where the obligation is in the form of a note. Chip, on Con. 35 ; Wilkins v. Stevens, 8 Vt. 214; Perry v. Smith, 22 Vt. 301; Kent v. Bowker, 38 Vt. 148. In this case, Batchelder’s failure to fill the order sent in May was a breach of the contract as regards the time of payment, and the unsatisfied balance thereupon became payable in money. It was of course competent for the parties, by a sufficient agreement, to reinstate the contract in its original terms; but the ordering of another bill of goods upon the solicitation of the defendant, without any accompanying expression of intention, was not sufficient to accomplish this. It had no more effect than asimilar transaction would have had in the case of an ordinary note. The obligation having become payable in money, the plaintiff could accept part payment in goods at his pleasure, and still require that further payment be made in money. Judgment reversed and judgment for plaintiff. Taft, J., did not sit, being in county court.