McClure v. Briggs

• Decision Date: 20 February 1886
• Citation: 2 A. 583,58 Vt. 82
• Parties: MCCLURE BROS. v. THOMAS J. BRIGGS
• Court: Vermont Supreme Court

2 A. 583

58 Vt. 82

MCCLURE BROS. v. THOMAS J. BRIGGS

Supreme Court of Vermont, Rutland County

February 20, 1886

Book account. Heard on the report of an auditor, March Term, 1885 VEAZEY, J., presiding. Judgment for the plaintiffs. The auditor found:

"On May 9, 1884, one Bradley applied to the defendant to purchase a parlor organ. The negotiations resulted in the defendant giving Bradley an order. Bradley was the agent of the plaintiffs, to whom the order was directed, to sell organs and obtain such orders. There was no fraud in the transaction. The order was sent to the plaintiffs, and the organ was delivered to the defendant at his home in Poultney within the time as agreed by Bradley and was charged to the defendant on book on the day of its delivery, May 24th, 1884 at the price stated in the order, to wit: $ 110. It was a Prescott organ. Before it was delivered, the defendant was made to believe by an agent in the sale of Estey organs that the Prescott organ order would not be satisfactory, and was induced to buy an Estey organ; and had then bought and received an Estey organ. When Bradley arrived with this Prescott organ the defendant refused to receive it, or allow Bradley to set it up in his house. He made this refusal before he had seen it, or knew whether it was a good organ or corresponded with the representations made by Bradley when the order was given. The refusal was induced solely by the representations of the other agent. After some talk the persuasions of Bradley overcame the defendant's objections so that he allowed Bradley to set up the organ. I find this organ was a good one, and filled all the representations made, with one exception, which, I find, was immaterial. . . . The difference, if any, was a minimum. I further find that before the defendant gave said order Bradley showed him a case exactly like this one, and told him it should be like that, as it was; but neither of them then knew that the panels were veneered; and such a case is regarded in the organ trade as solid. I also find that the defendant's repudiation of his contract was not in fact on account of this change from the representations, but was induced as before stated. Another ground for defence and the one mainly relied upon was this: That although the contract was fair and absolute, and performed by the plaintiffs, yet when the organ came as aforesaid and the defendant refused to receive it, he yielded the point and did receive it only upon the condition then agreed to by Bradley, that if the organ was not satisfactory he would take it away; and that the organ was not satisfactory, and Bradley was so notified.

"I do not find that Bradley said that which by a strict and critical construction would bear the interpretation which the defendant put upon it; but I do find that the defendant did understand it as above stated as claimed, and that Bradley intended he should so understand it. It was a parley between an adroit, skilful, and persistent organ agent and an uneducated, simple-minded, credulous farmer. The latter had allowed himself to be induced to repudiate his contract by a rival agent without cause, and without sharpness enough to see the wrong of the act, under the rosy tintings of the rival artist. The rival was ahead and had apparently got the field. But Bradley, though behind and nearly down, was not conquered. He had the advantage of being in the right. His rival was not present. The opportunity to turn the tables was irresistible. It was easy for him to say one thing that meant another to the artless and easily victimized farmer. Without saying exactly that the trade should be thrown up if the organ was not satisfactory, he made the defendant think he said that in substance, and that was his intention, as before stated. Under the circumstances, the fraud was about as nearly justifiable in a moral sense as any case that I can conceive of. The law, may be more strict. The defendant afterward thought he was dissatisfied with the tone of the organ. He had no ground for dissatisfaction."

"Order. $ 110.00. Poultney, Vt., May 9th, 1884. Messrs. McClure Bros.: Please ship to me one Prescott organ to Poultney, Vt. Style, 142 c c, No. --. If received in good order. I hereby agree to pay for the same as follows: Cash on or before July first, one hundred and ten dollars. [Signed] T. J. BRIGGS."

Judgment reversed, and judgment for defendant to recover his costs.

D. E. Nicholson, for the defendant.

Had the plaintiffs withdrawn when the organ was tendered and refused, and brought suit for goods bargained and sold, the order might have made the way comparatively clear for a recovery; but an action on book account could not then have been maintained on the transaction, and the charge on book was not then legally made, and has not been aided but impaired by the subsequent complications. To sustain book account, a delivery must have been made, not simply tendered. Hodges v. Fox, 36 Vt. 74; Read v. Barlow, 1 Aik. 145, S. C. 1 Vt. 97; Bundy v. Ayer, 18 Vt. 497.

J. C. Baker, for the plaintiffs.

When the order was received and the organ set aside and shipped according to the terms of the contract, the sale was complete. The title in the organ passed to the defendant. Story Sales, s. 300; 2 Chit. Conn. 519. All that was required of the plaintiffs to complete this sale was to ship the organ to Poultney by the ordinary and usual common carrier. Magruder v. Gage, 33 Md. 344; S. C. 3 Am. Rep. 177. The contract of purchase, evidenced by the written order, was not changed, and there is no intimation that the plaintiffs ever heard of this talk, or that Bradley had any authority to inject that condition into the written contract. The plaintiffs' agent was not clothed with authority to discharge written contracts, or vary their terms. The defendant had no right to say arbitrarily and without cause that he was dissatisfied and would not pay for the organ. It was the defendant's duty to act honestly, and in accordance with the reasonable expectations of the sellers, as implied from the contract, its subject matter, and surrounding circumstances. His dissatisfaction must be his own; must be actual, not feigned; real, not pretended. Hartford, etc., Man'f'g Co. v. Brush, 43 Vt. 528; Daggett v. Johnson, 49 Vt. 345. Book account will lie. Wilkins v. Stevens, 8 Vt. 214; Gassett v. Andover, 21 Vt. 343; Perry v. Smith, 22 Vt. 301; Kent v. Bowker, 38 Vt. 148; Groot v. Story, 41 Vt. 533.

OPINION

ROWELL, J.

Defendant gave a written order to plaintiffs, through Bradley, their agent, for a Prescott organ, to be paid for at a stipulated price within a time named, if received in good order. Bradley seasonably carried an organ to defendant's house that was in all respects like the one ordered except in a slight and an immaterial particular; but defendant, having in the mean time bought and received an Estey organ from another vender refused to receive plaintiffs' organ, or to let Bradley set it up in his house, whereupon negotiation ensued...