Brock v. Clark

• Decision Date: 14 September 1888
• Citation: 15 A. 175,60 Vt. 551
• Parties: JAMES W. BROCK v. JOHN W. CLARK
• Court: Vermont Supreme Court

15 A. 175

60 Vt. 551

JAMES W. BROCK v. JOHN W. CLARK

Supreme Court of Vermont

September 14, 1888

MAY TERM, 1888

ACTION for deceit in sale of hay. Heard on a referee's report March Term, 1888, ROWELL, J., presiding. Judgment for the plaintiff for $ 36.40,-the sum allowed by referee with interest. It appeared that the hay was raised on the defendant's land, was pressed and baled by his servants and that he never saw the hay; that plaintiff bought the hay relying on the representations; and that the hay was damaged $ 26.98 in value. As to the sale of the hay by the plaintiff the referee found as follows: The hay was shipped to one Bruce, and the plaintiff charged him $ 20 per ton, which was $ 6 per ton more then the plaintiff paid the defendant. "Bruce made no question about the price of the hay at that time nor did he ever object to paying full price for the hay as charged by plaintiff on account of its being damaged. Plaintiff and Bruce had dealings together, and had a large unsettled account. Subsequently, when plaintiff and Bruce came to settle up their account, Bruce having then learned that plaintiff paid only $ 14 per ton for this hay, he objected to paying plaintiff $ 20 per ton, claiming that plaintiff had no right to charge him more than he paid; that he was to have the hay at whatever plaintiff paid for it, and was to pay plaintiff a reasonable sum for his trouble in buying it for him; plaintiff did not admit that his contract with Bruce was such that he had no right to charge him a profit on the hay; but the charge for hay was compromised between them at $ 117.94. This was in a general compromise of their whole account, other items of which were in dispute. Bruce yielded certain claims in consideration of this compromise. Plaintiff paid the freight on the hay to Roxbury amounting to $ 11.20, making the cost of it at that place $ 119.14; $ 1.20 more than plaintiff was allowed for it in the compromise."

The judgment of the County Court is affirmed.

C. H. Pitkin and C. M. Bennett, for the defendant.

OPINION

ROSS

It is established by the report of the referee that the hay purchased of the defendant, and paid for by the plaintiff was to be good hay. It was baled and its quality could not be ascertained by ordinary examination. It did not answer to the character of good hay. The plaintiff was entitled to the benefit of the contract, whether he made a profit or suffered a loss in its...