Corey v. Boynton

• Decision Date: 31 May 1909
• Citation: 82 Vt. 257,72 A. 987
• Parties: COREY v. BOYNTON.
• Court: Vermont Supreme Court

72 A. 987

82 Vt. 257

COREY

v. BOYNTON.

Supreme Court of Vermont. Windham.

May 31, 1909.

Exceptions from Windham County Court; George M. Powers, Judge.

Action by Richard A. Corey against Delbert A. Boynton. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, and HASELTON, JJ.

O. R. Clayton and Gibson & Waterman, for plaintiff. Loren R. Pierce and J. K. Batchelder, for defendant.

EOWELL, C. J. This is' case for deceit in the exchange of a promissory note for the plaintiff's horse. It appeared that one Unwin gave his promissory note to the defendant in 1893, on which the defendant recovered judgment for the full amount in 1900, and that subsequently Unwin gave the note in question to the defendant in satisfaction of the judgment. The plaintiff claimed that the defendant represented to him, as an inducement to make the trade, that Unwin owned a farm and quite a large stock of cattle in Grafton, and that the plaintiff could get the money on the note from Unwin whenever he sent for it or demanded it. The plaintiff further claimed that Unwin did not own a farm, nor any real estate, nor any stock of cattle, in Grafton or elsewhere, and that he could not get the money on the note from Unwin at any time, all which the defendant then and there well knew.

The trade was made and fully completed and ended on Sunday. It appeared that the defendant kept the horse and traded it off before suit brought, and thus took the benefit of the trade with the plaintiff. The court charged that this was a ratification of the trade by the defendant, and that the rights of the parties were just the same as they would have been had the trade been on a week day. 'The defendant says that this charge raises the simple question whether a contract for the exchange of property, made and consummated on Sunday, is ratified by the mere subsequent retention of the property by the parties without protest, demand, or offer to return, and contends that such a retention is no ratification. But here is more than a mere retention, for the defendant disposed of the horse as his own before suit brought, and appropriated the avails to his own use, and that was a ratification of the contract on his part, for he thereby treated it as in force. Flinn v. St. John, 51 Vt. 334, 345. And the plaintiff ratified it by bringing this suit, for that was an election to allirin it, and not to disaffirm it, and he is bound by it; for to affirm and...