Lyman Hadley And Laura Hadley v. Peter Bordo
| Decision Date | 01 January 1890 |
| Citation | 19 A. 476,62 Vt. 285 |
| Parties | LYMAN HADLEY AND LAURA HADLEY v. PETER BORDO |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890.
Action on the case for a false warranty in the sale of a black mare. Plea, the general issue. Trial by jury at the September Term 1889, MUNSON, J., presiding. Verdict and judgment for the plaintiffs. Exceptions by the defendant. The facts sufficiently appear in the opinion.
Judgment reversed and cause remanded.
H F. Wolcott, for the defendant.
The plaintiffs claim to have bought conditionally of the defendant a horse, and gave a note for a part of the consideration with a writing evidencing that the horse was to remain the property of the defendant until the note was paid. On trial the plaintiffs offered parol testimony tending to show that at the time of the sale the defendant warranted the horse in certain respects. This was objected to on the ground that the writing purported to contain the whole contract, which could not be contradicted varied, nor enlarged by parol evidence. The writing did not purport to set forth the contract of sale; it was simply a lien to secure the performance of the contract which rested in parol. Parol evidence was admissible to show what the terms of the contract were. Such is the rule in respect of a chattel mortgage. Reynolds v. Hassam, 56 Vt. 449; and it was applicable in the trial below.
II. The plaintiffs allege that they bargained to buy the horse of the defendant, for a certain price or sum of money, to wit, the sum of one hundred and twenty dollars, and that the defendant by means of a warranty sold the horse to them for the sum of one hundred and twenty dollars, which they then and there paid him, and alleging the falsity of the warranty. The plaintiffs' evidence tended to show that they paid the defendant twenty dollars in money, that he applied in payment fifty dollars theretofore paid him in another trade which was then and there rescinded, and that they gave the defendant their joint promissory note for fifty dollars for the remainder of the consideration agreed to be paid; and further tended to show the sale a conditional one, in this, that the horse was to remain the property of the defendant until the note was fully paid. The defendant raised the question of variance, insisting that the proof did not support the declaration. It is a rule of universal application in this State, that where the cause of action originates in contract, and the declaration in form counts upon the contract, it must be proved substantially as laid, and a variance in any one feature of the contract is fatal, and this whether the action is in form ex contractu or ex delicto. Vail v. Strong, 10 Vt. 457.
a. Did proof of giving a promissory note support the allegation that the plaintiffs paid for the horse? The allegation is, that the horse was bargained for one hundred and twenty dollars in money, and sold for one hundred and twenty dollars. Treating this as an allegation of a sale for money, it has been held that proof of a payment in goods and other property supports an allegation of payment, upon the ground that the particular mode of paying the purchase money is immaterial. 1 Ch. Pl. (14 Am. Ed.) 314; Hands v Burton, 9 East 349; and see Barbe v. Parker, 1. H. Bl. 283. Can it be said that the note paid the amount due for the horse? It is well settled in this State that a promissory note given for a debt which accrued at the time the note was given, is presumptive evidence of the payment of the debt, so that no action can be maintained upon the original indebtedness. There are many limitations to this rule which will appear from an examination of the cases, but the rule is well settled, and as has been stated in one of the cases, the creditor "is paid by his own agreement." Upon this point see many cases from Hutchinson v. Olcutt, 4 Vt. 549, to Ricker v. Adams, 59 Vt. 154, 8 A. 278. Suppose it was a cash sale, it not being averred to be a cash payment, anything taken in payment, as cash, satisfies the allegation of payment. We hold there was no variance between the allegation and proof of payment. The plaintiffs allege in their declaration a sale of the horse; we think this implies an absolute sale, just what the word sale imports upon its face, the usual ordinary meaning; the plaintiffs' proof was of a conditional sale; the title of the horse did not pass from the defendant and it was not to pass, until the lien note was paid. Whether the transaction...
To continue reading
Request your trial