F. I. Somers & Sons, Inc. v. Le Clerc

• Decision Date: 03 October 1939
• Docket Number: No. 1661.,1661.
• Citation: 8 A.2d 663
• Court: Vermont Supreme Court
• Parties: F. I. SOMERS & SONS, Inc. v. LE CLERC et al.

8 A.2d 663

F. I. SOMERS & SONS, Inc.

v. LE CLERC et al.

No. 1661.

Supreme Court of Vermont. Washington.

Oct. 3, 1939.

Exceptions from Montpelier Municipal Court; Arthur C. Theriault, Judge.

Action by F. I. Somers & Sons, Inc., against R. A. LeClerc and trustee on alleged contract by which defendant promised to pay mother's indebtedness to plaintiff out of rents and profits of mother's real estate and out of proceeds from sale thereof, in consideration of discharge of mother's indebtedness to plaintiff. A verdict was directed in favor of the defendant, and the plaintiff brings exceptions.

Reversed and remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

George R. McKee, of Montpelier, for plaintiff.

Robert H. Ryan, of Montpelier, for defendant.

SHERBURNE, Justice.

This is an action of contract in which it is alleged that in consideration of the discharge of an indebtedness due from the defendant's mother the defendant promised to pay it out of the rents and profits of her mother's real estate and out of the proceeds from its sale. The case comes here upon exceptions to the direction of a verdict in favor of the defendant.

It was conceded that the plaintiff had a valid account against the defendant's mother, and, viewing the evidence most favorably to the plaintiff, it appeared that on February 12, 1934, the defendant came to the plaintiff's store and had a talk with Fred I. Somers, plaintiff's general manager, in which she said that her mother could not pay the account, and he said that he wished some one to assume responsibility, whereupon she said that she would assume the account in her name and make small monthly payments, and stated that she was going to look after her mother's property and affairs, that they hoped they could sell the property for enough to clean up their accounts, and that they would pay in full if they sold for enough to pay what they owed. At this time she paid ten dollars on account, and he directed the bookkeeper to transfer the account into defendant's name and to send future statements to her. The defendant and her mother had the same names and resided at the same address. The bookkeeper immediately made the change upon plaintiff's books by substituting the word "Miss" for "Mrs." Subsequently monthly statements were sent to the defendant, but the bookkeeper was not sure but that she might unconsciously have sent some statements to Mrs. R. A. LeClerc or to just R. A. LeClerc. Prior to the bringing of this suit the real estate had been sold for enough to pay all indebtedness, including plaintiff's account.

Fred I. Somers was the only witness to the conversation with the defendant. The evidence which he gave upon cross examination contradicted his direct testimony somewhat, and it would have been possible for the jury to have found therefrom that the defendant did not assume her mother's account, but merely made a collateral promise. However, the credibility of the witness and the weight to be given his testimony were matters for the jury. It was for them to say which of the contradictory statements they would accept. Gomez v. Lawson, 105 Vt. 353, 357, 166 A. 14; McDonald v. McNeil, 92 Vt. 356, 361, 104 A. 337; Robey v. Boston & Maine Railroad, 91 Vt. 386, 388, 100 A. 925; Pocket v. Almon, 90 Vt. 10, 14, 96 A. 421.

The nature of the evidence is such that an examination of the authorities should be made to determine whether the jury would have been justified in finding that the defendant's assumption of her mother's account with the plaintiff was either authorized, or subsequently ratified, by her mother. In Robinson v. St. Johnsbury & L. C. R. R. Co., 80 Vt. 129, 66 A. 814, 9 L.R.A., N.S, 1249, 12 Ann.Cas. 1060, there is a review of a number of English and American cases upon the question whether payment or satisfaction by a third person, not himself liable as a co-contractor or otherwise, is sufficient to discharge a debtor. In that case the payment was made on plaintiff's demand, in settlement of the cause of action, by one who was in fact an indemnitor of the defendant, and whose act the defendant could and did ratify by pleading it, and the Court expressly said that nothing discussed in the opinion should be taken as deciding more.

According to Williston on Contracts, § 1858, and Elliott on Contracts, § 1928, the weight of authority in the United States sustains the validity of a defense of a payment made by one who is not a party to the contract and not even in privity with the debtor, if accepted in satisfaction of the debt, and holds that such payment discharges the debt. However, even though the third person pays in money the exact amount of the debt there can in strictness be at most an accord and satisfaction, for, as payment by A is a different thing from payment by B, the obligation has not been performed according to its tenor. Among others, the following cases support this proposition: ...