Beverwick Brewing Co. v. Oliver

Munson, J. The manager of the plaintiff corporation deposes that the lager beer for which recovery is sought was sold and delivered to the defendant in Albany, New York, on orders received there from time to time by letter or telegram. But it further appears from his deposition that before any order was sent he had a conversation with the defendant at Burlington, in this State, in regard to orders which might thereafter be given; and the deposition seems fairly to mean, and is construed by counsel to mean, that the orders in question were sent pursuant to what was then said. In that conversation, although no order was given or promised, the defendant arranged to have whatever he might order shipped in a particular manner. This distinguishes the case from Backman v. Mussey, 31 Vt. 547. It is apparent that the orders afterwards sent and accepted did not embrace the whole agreement; for if they had been filled in disregard of the understanding had at Burlington, the defendant could have relied upon that as a part of the contract. See Hobart v. Young, 63 Vt. 363. It appears then from the plaintiff’s own testimony that the contract was partly made in this State. It was therefore unenforce [325] able, and the court properly directed a verdict for the defendant. V. S. 4460, 4464. Backman v. Wright, 27 Vt. 187; Starace v. Rossi, 69 Vt. 303. Judgment affirmed.