Greene v. Burton

• Decision Date: 12 September 1887
• Citation: 10 A. 575,59 Vt. 423
• Parties: E. G. & S. C. GREENE v. O. A. BURTON AND E. A. SOWLES
• Court: Vermont Supreme Court

10 A. 575

59 Vt. 423

E. G. & S. C. GREENE v. O. A. BURTON AND E. A. SOWLES

Supreme Court of Vermont, Franklin County

September 12, 1887

BOOK ACCOUNT. Heard on an auditor's report, September Term 1886, ROYCE, Ch. J., presiding. Judgment for the plaintiffs. See W. C. Smith v. O. A. Burton and E. A. Sowles ante, 408, where is fully set forth the interest which these defendants had in the Glens Falls Shirt Factory, and their relation to each other.

The auditor found as follows, in part, as to whom the goods were originally charged to:

"I find that at the beginning of the account embodied in the specification upon the books of the plaintiffs there appears the words 'Glens Falls,' 'Burton and Sowles,' and that where the words appeared on said book there appears to have been something erased, and said words or part of them written over them; and that on the day-books of the plaintiffs the charges of the goods were made in the name of the Glens Falls Shirt Factory, Glens Falls Shirt Company Shirt Factory, and in other ways, and that said entries on said books were made by different parties, including the plaintiffs, from time to time from memoranda kept by workmen in the employ of the plaintiffs.

"The erasure spoken of appears on page 289 of plaintiffs' Ex 'B'; and I was requested by the defendants to find and report when the words 'Glens Falls,' 'Burton and Sowles,' were written on said page; but I am unable from the evidence to find when in point of fact such words were written, whether before or after August 26, 1881."

Judgment for the plaintiffs against Burton affirmed, against Sowles reversed, with costs.

E. A. Sowles, pro se.

The proof shows that the charges were made to the Glens Falls Shirt Co., and in other ways. This is strong proof to whom credit was originally given. Reed Fraud, s. 90; Beebe v. Dudley, 26 N.H. 252; Hardman v. Bradley, 85 Ill. 162. When erasures have been made it is conclusive evidence. Reed Fraud, supra. Burton's promise was within the Statute of Frauds. Reed Fraud, s. 120, n.; Sledham v. Sanford, 36 N.Y. 343. The action should be assumpsit on the promise. Austin v. Baker, 12 Mod. 250.

Cross & Start, for the plaintiffs.

The promise of Burton that he and Sowles would see that the plaintiffs had their pay for the labor and material was an original undertaking, and not collateral or conditional. Whitman v. Bryant, 49 Vt. 512; Bagley v. Moulton, 42 Vt. 184; Blodgett v. Lowell, 33 Vt. 174.

Sowles is liable on the promise. The promise was made in and about the business of the defendants, in which they had a joint interest, and in respect to which they were jointly liable. It was a promise for the benefit of the defendants. The goods and labor went for their benefit. Duryea v. Whitcomb, 31 Vt. 395; Tyler v. Scott, 45 Vt. 260; Noyes v. Cushman, 25 Vt. 390.

OPINION

VEAZEY, J.

We think the findings of the auditor should be construed as equivalent to the finding expressly of an original undertaking on the part of Burton. Previous to his promise the plaintiffs had furnished the "shirt company or factory" labor and materials on the credit of MacDonald, who was the proprietor of the business under the name of the Glens Falls Shirt Company, but had then refused to furnish any more on his account or credit. Burton and Sowles were interested in the business by reason of their loans to MacDonald and the character of their security therefor, and had an agent in and about the establishment to look after the business in their behalf. When this agent brought the fact of the plaintiffs' said refusal to the attention of Burton he told one of the plaintiffs to furnish labor and material, "as the factory must be kept running," and that their said agent, Hall, "would order what was wanted, and that Burton and Sowles...