Kidder v. Kinsman , 44 Vt. 303 ( 1872 )

The opinion of the court was delivered by

Ross, J.

The facts found by the auditor show that the judgment should be for the defendants, unless they have made themselves chargeable for one or more of the mowing-machines which remained unsold a.t the termination of their agency. None of these machines have been sold and converted into money. The plaintiff claims that the defendants have rendered themselves liable for two of the machines in this form of action, from their refusal to deliver them when demanded by him. Assuming for the present that the facts found by the auditor establish a demand by the plaintiff, and a refusal to deliver the machines by the defendants, could the plaintiff nharge and recover for such machines in this form of action ? If the defendants, after the termination of their agency, refused to deliver the machines when reasonably demanded, they committed such a breach of their contract as would render them liable in an action upon the contract, and probably for the conversion of the machines in an action of trover. If the facts found render the defendants liable to pay for the machines in an action of trover, can the plaintiff waive the tort, and charge the defendants with the price of the machines on book ? We think not. It has been repeatedly decided by this court that a party cannot recover in the action of book account for items for which he could not recover under the common counts in general assumpsit. The plaintiff’s right to recover in such an action would be limited to the counts for goods sold and delivered, and for money had and received. He could not recover for the machines under the count for goods sold and delivered, as the facts found conclusively establish that they have neither been sold nor delivered to the defendants, as their own property. Neither can he recover under the count for money had and received, as the defendants have never sold the machines, and received the money therefor, so that the defendants have not in their hands the price of the machines in money, which the plaintiff, by waiving the tort, may elect to call his own, and recover. The conversion of property can be waived and its value recovered under this count only where the property has been converted into money. Hence, on general and familiar principles it would seem that the plaintiff’s right of recovery must be denied.

The plaintiff relies upon the case, Hall v. Chase v. J. &. H. Peck Co., 10 Vt., 474, and insists that it is an authority showing that the two machines are properly chargeable and recoverable in this form of action. We think that the principles announced in the decision of that case are not at variance with the conclusion we have arrived at. In that case the goods left by the plaintiffs with the defendants to be sold, before the action was commenced, had been mostly sold and converted into money. The defendants resisted the plaintiff’s right to recover, upon the ground, first, that the action should have been account and not book account; and secondly, because the right to charge the defendants for the goods did not exist at the time the plaintiffs delivered the goods. The county court sustained these objections. The supreme cojirt reversed the judgment of the county court, and gave judgment for the plaintiffs, but whether for the small balance of goods unsold at the commencement of the- suit does not appear. The court ■ rest their decision in answer to the defendants first objection, upon the ground that an action for money had and received would lie for the avails of the property in •question. Every illustration used by the learned judge, in support of the decision against this objection, assumes that the property had been converted into money. The views expressed would seem to forbid a recovery for the goods which had not been sold. In regard to the second objection, the court held that the right to charge for the goods for accountability existed at the time of the delivery of the goods, and that that was sufficient, if before the commencement of the action the defendants became absolute debtors for the goods. No question was raised in regard to the plaintiffs’ right to recover for the goods unsold, and the court did not consider that question, but the reasons given for the decision would exclude a recovery for such goods. We think, also, that the facts found fall short of establishing that the defendants have refused to deliver the two machines upon a legal demand. One of the machines was demanded before the defendants’ agency ex- ■ pired, and while the defendants could rightfully retain it. The other demands were not absolute, but qualified and conditioned in such a manner that the defendants were not bound to answer them, excepting the one made at the defendants’ store, in Alburgh, for the machine then at South Hero. We think the plaintiff’s refusal to give the defendants time to go and get the machine unreasonable, and the defendants’ offer to get and deliver the machine as soon as possible was all they were bound to do under the circumstances.

The judgment of the county court is affirmed.