Smalley v. Soragen , 30 Vt. 2 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

The main controversy in this case arises out of the plaintiff’s having taken James Carty’s notes in settlement of the judgment against him in the name of the sheriff, and the sale of those notes at a discount to Mr. Fletcher. We do not find it necessary to decide the question whether the plaintiff transcended his powers in the taking and sale of the notes.

There was, no doubt, evidence before the auditors tending to prove a ratification of the acts of the plaintiff by the defendant, and yet we do not understand by the report that the auditors have found a ratification, and no such ratification could, in point of fact, have been inferred from the report by the county court; and this court will not make inferences of fact which the county court did not make, in order to reverse their judgment.

If we assume the ground which the defendant’s counsel has assumed, that the plaintiff acted in his own wrong in the taking and sale of the notes, we think the judgment of the county court must be reversed. The book action will not lie to recover damages for the breach of a special contract. 16 Vt. 656; 21 Vt. 507.

The defendant’s claim against the plaintiff upon the ground assumed, is for damages occasioned by his transcending his authority as an attorney, and his damages would be measured by the amount of his loss actually sustained, and not necessarily by the nominal amount of his claim against Carty. Such unliquidated damages cannot be adjusted in the book action, whether we consider them as arising from a tort, or the breach of an implied contract. The defendant’s claim against the plaintiff is subject to the same rules as it would be if he was plaintiff in the suit. So far as the plaintiff has actually received money on the notes, so far he does not object to the charge against him, and I should apprehend he could not; but it may well be questioned, whether the course adopted by the defendant in charging his claim on book, and claiming to have it adjusted in that form of action, does not, on his part, amount to an affirmance of the whole transaction on the part of the plaintiff.

We see no reason why the plaintiff should not be allowed the two items in his account for interest. It has long been the practice in this state to allow interest on unsettled accounts, and we do not understand that any objections are made as to the manner or time of its computation.

The result is, the judgment of the county court is reversed and judgment rendered on the report for the plaintiff, according to the report of the auditors, not charging the plaintiff with the discount made hy him on the sale of the notes to Fletcher.