Dunnett & Slack v. Martin H. Gibson

• Decision Date: 21 February 1906
• Citation: Dunnett & Slack v. Martin H. Gibson, 63 A. 141, 78 Vt. 439 (Vt. 1906)
• Parties: DUNNETT & SLACK v. MARTIN H. GIBSON
• Court: Vermont Supreme Court

63 A. 141

78 Vt. 439

DUNNETT & SLACK v. MARTIN H. GIBSON

Supreme Court of Vermont

February 21, 1906

January Term, 1906.

GENERAL ASSUMPSIT. Heard on the report of a referee and exceptions thereto at the December Term, 1905, Caledonia County, Munson, J., presiding. Exceptions overruled. Judgment on the report for the plaintiffs for $ 500, and interest from September 26, 1904, and costs. The defendant excepted. The opinion states the case.

Judgment affirmed.

Harland B. Howe for the defendant.

Dunnett & Slack pro se.

Present ROWELL, C. J., TYLER, WATSON, HASELTON, POWERS, and MILES JJ.

OPINION

TYLER

The referee reports that in the spring of 1904 the defendant owed the plaintiffs about $ 1,300 on account and note, and that he was pressed by them for payment; that in March or April, without the plaintiffs' knowledge, he bought of a Mrs. Stanley four notes which Dunnett had previously given to James Johnson and which amounted to more than the plaintiffs' demands against the defendant; that Dunnett was requested by the defendant to apply his indebtedness to the plaintiffs upon these notes, to which Dunnett replied that he would so apply his part of the demands, but that his partner must have the money for his part; that on September 26, 1904, Dunnett and the defendant made a complete settlement by which all of the plaintiffs' demands except $ 500 was applied on the Johnson notes, a note was given to the defendant by Dunnett for $ 217.69 and he was to give the defendant five other $ 100 notes when the defendant paid the plaintiffs the $ 500. Dunnett then delivered to the defendant a writing which reads: "South Ryegate, Vt., Sept. 26th, 1904.

Rec'd from M. H. Gibson four promissory notes signed by me and I have given him my note for $ 217.69. These notes which I have received are to settle account and note of Dunnett & Slack against Gibson, except the sum of Five Hundred Dollars. When Gibson pays the firm of Dunnett & Slack Five Hundred Dollars I am to deliver to2 said Gibson five of my own promissory notes for One Hundred Dollars each of this date payable in 2, 3, 4, 5, and 6 months from this date."

The referee finds that the defendant was to pay the $ 500 immediately after the settlement, and that Slack soon after September 26 demanded payment of that sum of the defendant, who replied that he was trying to arrange with Dunnett to pay the $ 500 to the firm. On November 16 the defendant and Dunnett had some conversation in which Dunnett said in substance that if he had the money he might pay the firm, and the defendant then gave him a writing which was in effect authority to him to pay his firm the $ 500 in sums of $ 100 each at such times as the notes would be payable which were to be given him by Dunnett under the terms of the settlement. It was not convenient for Dunnett to make such payments and he has never paid the firm any part of the $ 500.

On two or three occasions after November 16 and before this suit was brought Slack demanded payment of the defendant of the $ 500, but he has never paid it. On two occasions after the suit was brought the defendant and his attorney demanded the notes of Dunnett, who replied that the defendant was not entitled to the notes until he had paid the firm.

At the trial Dunnett testified, without objection, that he made the settlement with the defendant on September 26, and that by its terms the defendant was to pay his firm $ 500 immediately, and he put the writing of that date into the case. In defence the defendant testified that he bought the Johnson notes for the plaintiffs at Dunnett's request that he did not tell Dunnett that he would pay the plaintiffs the $ 500 immediately; that he was not to pay the plaintiffs any money, but that Dunnett agreed to take care of the $ 500 due to his firm. In rebuttal Dunnett testified, subject to the defendant's exception, that the defendant did not purchase the Johnson notes at his, Dunnett's, request; that after the...