Walker v. Barrington , 28 Vt. 781 ( 1856 )

The opinion of the court was delivered hy

Bennett, J.

The only dispute in this case is in relation to items 17 and 18 in the defendant’s aocount. If the defendant is not entitled to recover for these items, the balance on the accounts as allowed, is for the plaintiff. The auditor finds that at the time the plaintiff let the defendant have the shoat and the coal, it was agreed that the defendant was to 'pay the amount for the same to the father of the defendant; and that the defendant offered to pay his father, but he at first declined to receive the pay, for reasons assigned in the report; but the case finds, as we understand it, that he did pay his father the two items, on the 15th day of December, 1855, which was after the suit was commenced, but before the audit. It being a part of the agreement, when the shoat and coal were sold to the defendant, that payment should be made for the same to the father of the defendant, it may well be questioned whether it was competant for the plaintiff to countermand the authority to pay the amount to the father. But be this as it may, it is quite clear, we think, that the bringing of this suit is not, per se> a revocation of the authority; and there is nothing else in the case tp. ground such a claim upon. There were running accounts between these parties, which the action was brought to settle; and the auditor has not found any revocation, in fact, of the authority to make payment for these items to the father.

We think, then, the judgment of the county court should be reversed, and judgment be rendered, on the report, fof the defendant* allowing to him items 17 and 18, in his account,