Harlow v. Dyer , 43 Vt. 357 ( 1871 )

The opinion of the court was delivered by

Peck, J.

Chap. 33, § 15, Gen. St., does not require defenses admissible under the general issue at common law to be pleaded specially or by way of notice, unless it be “ matter operating to extinguish the right of action which once existed.” If the evidence objected to by plaintiffs and admitted by the court,—to the effect that Harlow one of the plaintiffs requested the defendant not to send forward the residue of the hay, but to sell it for the plaintiffs-in Vermont, agreeing to pay for it under the contract the same as if delivered on the cars; and that the defendant assented to this and sold the hay for them accordingly for the best price he could get, being $20 per ton, and credited the .plaintiffs the amount,—went to extinguish an existing right of action in favor of the plaintiffs against the defendant, it was not admissible ; but if its effect was to show that no such right of action accrued, it was properly admitted. This must be determined by looking at this evidence in connection with the other evidence in the case. If we look at the evidence on the part of the plaintiff as to the terms of the original contract, and what the plaintiffs’ evidence tends to show was done under it, it might perhaps be claimed that a right of action had accrued to the plaintiffs, which the evidence objected to tended to extinguish. But whether this is so or not, is not material, because upon the defendant’s evidence as to the terms of the original contract, and what he had done in the performance of it, he had been guilty of no breach of the contract up to or at the- time of the new arrangement, which this evidence to which the plaintiffs objected tended to prove ; consequently no right of action existed in favor of the plaintiffs against the defendant at that time. The fact that the defendant had not at that time sent forward hay to the amount of the $500 which the plaintiffs advanced him upon the contract, did not constitute a right of action against the defendant. He could not be made liable either for the surplus of the $500, or upon the contract, until he should be guilty of a breach of it. This evidence therefore did not go to prove matter operating to extinguish a right of action then existing, if the other evidence on the part of the defense was true. This evidence was therefore admissible, as it did not go to prove matter operating to extinguish any right of action which then existed in favor of the plaintiffs, but tended to show that no right of action then or thereafter accrued to the plaintiffs; as, if true, it excused the defendant from forwarding the residue of the hay. As the jury might find the defendant’s version of the contract and his action under it true, it was proper that this additional evidence should be admitted, as, in connection with the other evidence on the part of the defendant, if the jury should find it all true, it would constitute a good defense; not by extinguishing a right of action in favor of the plaintiff which once existed, but by showing that no such right of action ever accrued.

This disposes of the exception taken by the plaintiffs, under the charge to the jury, since the court in that portion of the charge upon which the exception is based gave the same effect to this evidence as already indicated that it was entitled to.

Judgment affirmed.