C. C. Johnson v. Thomas Belanger
| Decision Date | 13 November 1911 |
| Citation | 81 A. 621,85 Vt. 249 |
| Parties | C. C. JOHNSON v. THOMAS BELANGER |
| Court | Vermont Supreme Court |
October Term, 1911.
GENERAL ASSUMPSIT. Plea, the general issue with notice. Trial by jury at the June Term, 1911, Caledonia County, Hall, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment reversed and judgment for the defendant to recover his costs.
Harland B. Howe and Herbert W. Hovey for the defendant.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
The partnership which had existed between the plaintiff and defendant was dissolved in 1908. No settlement of their partnership deal was effected until February 22 1909, when, as the plaintiff's evidence tended to show, the sum of one hundred and fifty dollars was agreed upon by them as the amount due the plaintiff from the defendant. At the same time and as a part of this settlement it was agreed that the defendant should assign to the plaintiff an account against Geo. P. Barrett & Co., which he assured the plaintiff would amount to more than the sum named, and that the plaintiff should accept such assignment in full satisfaction and discharge of this balance so agreed upon. Accordingly, the defendant gave the plaintiff an order on Barrett & Co., therein directing that firm to pay to the plaintiff the amount due the defendant on account. And the plaintiff gave the defendant a writing therein agreeing to accept this account in full settlement of accounts to date. The plaintiff presented the order to Geo. P. Barrett, who was doing business as Barrett & Co., and he refused to accept it, claiming an offset on account of certain matters growing out of his deal with the defendant. Disregarding these claims, Barrett & Co. then owed the defendant one hundred and forty-five dollars and fifty cents. Barrett testified, in effect, that there was then due the defendant a balance of only $ 34.90.
Without returning or offering to return the order referred to, the plaintiff brought this action of assumpsit, and claimed at the trial to recover the balance of $ 150 as upon an account stated. The defendant pleaded the general issue with a notice setting up the order as an accord and satisfaction. The plaintiff claimed the right to recover upon the account stated without regard to the alleged accord and satisfaction, on the ground that he was induced to accept the order by the fraudulent representations of the defendant,--and this was one of the issues tried out before the jury.
It was conceded at the trial that the plaintiff had never returned the order, nor offered to do so until just as the trial began, and that it was then refused by the defendant.
At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant moved for a verdict on the ground that, in view of this failure to return the order, this action could not be maintained.
It was said by this Court in Brainard v. Vandyke 71 Vt. 359, 45 A. 758, that it may be taken as settled in this State that when one has received anything of value in settlement of a right of action, the contract of settlement, although obtained by duress and fraud, is a bar to a recovery at law so long as it is not rescinded by an offer to return the consideration, in so far as it lies in the power of him who would rescind to do so. But that if the thing received as a consideration for the release is of no value at law, a rescission may be effected on the part of him who has the right, by notifying the other party that he...
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