Fonda v. Burton

• Decision Date: 23 July 1891
• Citation: 63 Vt. 355,22 A. 594
• Parties: FONDA v. BURTON et al.
• Court: Vermont Supreme Court

22 A. 594

63 Vt. 355

FONDA

v. BURTON et al.

Supreme Court of Vermont. Franklin.

July 23, 1891.

Exceptions from Franklin county court; Ross, Judge.

Assumpsit by W.B. Fonda against Burton and Sowles, to recover for lumber sold and delivered. Judgment for plaintiff on referee's report. Defendants except. Judgment modified.

The plaintiff sought to recover for goods furnished the defendants as partners under the title of the" Glens Falls Shirt Company "between February 15 and October 20, 1881. The defendants made no question as to the furnishing of the goods, but claimed that they did not constitute the Glens Falls Shirt Company between the dates specified, and that one Muc Donald was that company, and so chargeable with this debt. Previous to January 1, 1881, MacDonald had been engaged in the manufacture of shirts at Glens Falls, N. Y., under the name of the "Glens Falls Shirt Company," and had proposed to remove that business to St. Albans, upon condition that he should be given suitable premises in which to carry on his business. The defendants at that time owned the Tremont House property in St. Albans, and it was in contemplation to give this to MacDonald for the foregoing purpose. In this view a subscription paper was circulated, and subscriptions made upon it to the amount of about $6,000. The plaintiff subscribed $100, which he has never paid. After the subscription had been completed, and on February 5, 1881, the defendants conveyed the Tremont House property to one Foster, as trustee, to be used by MacDonald for the manufacture of shirts. On February 8th the defendants Foster and MacDonald executed a written agreement, which had been previously drawn up but not signed, specifying in substance that MacDonald was to take possession of the Tremont House property and operate it as a shirt factory; that the defendants should supply the money with which to do this to a certain extent; and that the property acquired in the course of the business should belong to the defendants until their debt was paid. February 15th MacDonald came on and took possession of the property, and began to put the same in order for the conduct of his business. Thereupon the defendants, instead of furnishing MacDonald the money, put their agent to a certain extent in charge of the business, and afterwards appointed a treasurer, who disbursed the money. The defendants also personally engaged in the business to some extent. On June 30, 1881, another written memorandum was signed between the defendants and MacDonald, in which the relations of the different parties to the business were specified, and in which MacDonald was treated as the proprietor. The plaintiff's account was Charged upon his books to the Glens Falls Shirt Company, and the defendants insisted that these written contracts before mentioned were conclusive as to who in fact constituted that company, and that parol proof could not be received to show the fact otherwise. The referees admitted oral evidence upon that poinr, and from it found that the defendants were in fact that company in its transactions with the plaintiff, and that he so understood it when he furnished and charged the goods. On June 2, 1884, MacDonald executed to the plaintiff a chattel mortgage to secure a note embracing the debt in suit and other claims. In reference to the circumstances under which, and the purpose for which, this mortgage was given, the referees found: "The plaintiff was an old acquaintance of MacDonald's, and after the collapse of the business of the shirt manufactory in 1882 he had given MacDonald credit to some extent for necessaries, for which MacDonald had been unable to pay. The latter had a cabinet of minerals, fossils, petrifications, and curiosities, relics, coins, autographs, etc., and feared that the same might be attached upon some of the numerous debts he was owing. Wishing to secure the plaintiff for the amount of his personal indebtedness to him, and at the same time prevent the attachment of his cabinet as aforesaid, he proposed to the plaintiff to take a note large enough to cover both the personal indebtedness and that of Burton and Sowles, and a mortgage of the cabinet to secure the same, which was done. The plaintiff never received the cabinet or any benefit from it, nor did he treat it as a payment of the debt of Burton and Sowles; he treated the transaction as an accommodation to MacDonald, and had no purpose to substitute...