Bank v. Strait

• Decision Date: 27 April 1886
• Citation: 3 A. 541,58 Vt. 448
• Parties: BANK v. STRAIT.
• Court: Vermont Supreme Court

3 A. 541

58 Vt. 448

BANK

v. STRAIT.¹

SUPREME COURT OF VERMONT.

Filed April 27, 1886

Exceptions from county court, Franklin county.

This was an action of assumpsit to recover for two promissory notes. Referred to a referee to find and report the facts. Heard at the April term, 1885, of the county court, Franklin county; Royce, C. J., presiding. Judgment pro forma for the defendant. Exceptions by the plaintiff. The referee reported, among other things, that the notes in controversy were discounted by the plaintiff, and plaintiff was the holder of the same; that the notes were given to one Delaney by the defendant under the following arrangement and circumstances: Delaney was engaged in the flour and feed business at Swanton, Vermont; that he had a bank-account, and did business at the plaintiff bank; that his clerk was a son of the president of said bank; that the defendant was a dealer in flour and feed at Fletcher, Vermont; that he had bought goods of Delaney, and had always paid for the same in cash until the third of October, 1878; that from that time until the twenty-eighth day of January, 1879, he paid for the same in notes made payable to the order of said Delaney at the National Bank of Swanton, but that said Delaney had often requested defendant to make said notes payable at the plaintiff bank, but that the defendant had refused on account of the inconvenience attending the payment of said notes at the plaintiff bank, but finally consented and made them so payable after that date; that on that date the defendant was at the office of Delaney, and while there he met the president of the plaintiff bank and his son, clerk of Delaney as aforesaid; that substantially the following conversation took place: J. H. Vilas, son of the plaintiff's president, and Delaney, in the presence of the said president, began to urge the defendant to buy corn, flour, and feed; that the defendant objected to buying a car-load without a longer term of credit than had previously been given him by the said Delaney; that thereupon the said bank president inquired of Delaney as to the financial responsibility of the defendant, and, on being informed that he was responsible, suggested that they sell the defendant all the goods he wished to buy, and take his note on one, two, or three months time; that the defendant was then requested to buy the goods, and make his note for the same payable at the plaintiff bank; that the defendant again objected to giving his notes payable at said bank for the reasons before stated; that said J. H. Vilas suggested to said defendant that it would be as convenient for him to make his notes payable at the plaintiff bank as at Swanton, as the said Delaney was sending funds to the plaintiff nearly every day, and could send his at the same time; the defendant then inquired of the plaintiff's president if that arrangement would be satisfactory to the bank, and he replied that he could see nothing wrong about it, and at the same time suggested that the defendant continue to buy goods of Delaney, and make his notes payable at his bank, and that Delaney could forward his funds for the payment of the same, and the bank would return the notes to Delaney, and Delaney return them to the defendant; that this arrangement was carried out and the defendant continued to buy goods of Delaney, and give notes payable to the plaintiff until 14 had been given; that the defendant paid the money for all of these notes to Delaney, but that Delaney had not paid the bank for the two in question. The referee then left the question as to whether Delaney was the agent of the plaintiff or defendant to the court, and found that in case Delaney was agent in the...