McNeal v. Strong & Jewett , 16 Vt. 640 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

The account, upon which the plaintiff claims to recover in the present case, is for articles which it was agreed, before the delivery, should go in payment of a note which the defendant Strong held against the plaintiff. If this were all the case, there would seem to be little doubt that the plaintiff could not recover.

But the auditors report, that, “at the time the parties undertook to settle, as aforesaid,” (which, as no former attempt at settlement is referred to, we must understand as referring to an attempt to settle according to the contract as before stated,) “disagreeing as to the price of the salts, defendant Jewett, the active partner of the firm of Strong & Jewett, refused to apply the balance on said note, as claimed by the plaintiff.”

Now if this refusal was unreasonable, it would justify the plaintiff in bringing this suit. For as the defendants had received the salts, and as the plaintiff could not compel the application upon Strong’s note by plea in offset, if the defendants refused to fulfil their contract in making the application, it would convert their special undertaking into an obligation to pay money.

This refusal, as it was in terms a breach of the contract, will be considered unreasonable, unless some excuse is shown; such excuse, if any existed, should have appeared in the report of the auditors. But upon this point the report is silent. It is, then, impossible for us to say that Jewett’s refusal was not unreasonable. Of course, then, the plaintiff is entitled, upon the facts disclosed in the report, to recover.

Judgment affirmed.