Proctor v. Wiley , 55 Vt. 344 ( 1883 )

The opinion of the court was delivered by

Royce, Ch. J.

There can be no question but what the first thirty items of the defendant’s account and the items of the pláintiff’s account that were considered and adjudicated by the auditor, were proper matters of book charge. They were not so connected with or made dependent upon any of the stipulations or conditions contained in the written lease of the parties as to require that an action should be predicated upon the lease for their adjustment. The testimony admitted by the auditor as to what was said by the plaintiff on the day that the contract was executed and before its execution in relation to use of the sugar place on the Bartlett lot was admissible. It appears that the offer was made as an inducement to the defendant to make the contract. It is found that the plaintiff never made any charge or intended to make any for the same. There is no error apparent in the disallowance of that item of the plaintiff’s account.

The more important question arises upon the claim made by the the defendant for items Nos. 31, 32 and 33 in his account. These claims are for extra care of the plaintiff’s wife during some portion of the time covered by the lease, and for help employed in taking such care. The obligation to pay for such care is expressed in the lease, and it is upon that obligation that the defendant bases his right of recovery. The plaintiff objected to a recovery under the defendant’s plea in offset, and claimed that if any recovery could be had it must be in an action predicated upon the lease. If an action on book would lie to recover for those items, they are recoverable under the defendant’s plea.

The covenants in the lease were dependent covenants ; the covenant of the plaintiff to pay for the extra care was dependent upon the performance by the defendant on his part of his covenants as expressed in the lease, so that the question whether the parties have kept and performed the covenants of the lease has to be determined before it can be found that the plaintiff is under a legal obligation to pay the claims in controversy.

The action of book account has never been understood to be the appropriate action in which to settle such a controversy. If it should be so held, parties might disregard their sealed contracts in selecting their form of action, and all controversies connected with such contracts could be adjudicated in the action of book account. We are aware that the courts in this State have been gradually extending the scope of that form of action so as to embrace business transactions that were once thought not to be within it; but it has never been held that it could supersede the forms of action that have been establisned and sanctioned by long and universal usage for the enforcement of remedies that were provided for and secured by the sealed contracts of the parties.

The cases relied upon by the defendant in which it has been held that a recovery might be had in the action of book account where property had been sold or services rendered under a special contract, are clearly distinguishable from this. The case of Huxley v. Carman, 46 Vt. 462, is a direct authority against the right to recover for the disputed item in an action of book account, and what is said in the opinion in that case as to what might and what could not be recovered in that action is applicable here.

This view is fatal to a recovery for those items in this action and renders it unnecessary to pass upon the questions of evidence that are presented by the report. We do not think it best at this time to give a construction to the lease ; that can be more appropriately done when an action is brought upon it that requires it.

The judgment is reversed, and judgment for the defendant under his plea in offset, for forty dollars and twenty-six cents, and cause remanded.