McGowan v. Griffin

• Decision Date: 31 October 1896
• Court: Vermont Supreme Court
• Parties: McGOWAN v. GRIFFIN et al.

37 A. 298

69 Vt. 168

McGOWAN

v. GRIFFIN et al.

Supreme Court of Vermont. Washington.

Oct. Term, 1896.

Exceptions from Washington county court; Thompson, Judge.

Action by Martin J. McGowan against John H. Griffin and others. Verdict was directed for defendants, and plaintiff excepts. Reversed.

The special findings were to the effect that at the time of execution and delivery of the contract in suit, plaintiff and John P. McGowan were not partners in the grocery business, and the plaintiff and defendants did not then understand that the contract included and conveyed to defendants the money on hand and on deposit in the bank, received from the business mentioned in said contract.

John W. Gordon, for plaintiff.

R. A. Hoar and S. C. Shurtleff, for defendants.

ROSS, C. J. The plaintiff insists that the court erroneously ordered a verdict in favor of the defendants.

1. He says the contract under consideration should not be construed to cover the money taken by the plaintiff. By that contract the plaintiff sold and coveyed to the defendants "all his right, title, and interest in and to the business heretofore carried on by him and John P. McGowan under the name and style of the 'Boston Branch Grocery Store,' and under the name of 'Martin J. McGowan, Proprietor,' at North Barre, in the county of Washington." In another clause, he "transfers, conveys, and assigns" to the defendants "all accounts due said firm," and in consideration thereof the defendants agree "to pay all debts and assume all obligations and liabilities contracted for and on behalf of said firm," and to pay the plaintiff a stipulated sum. Annie McGowan (the mother of the plaintiff), one of the defendants, "acknowledges full satisfaction and payment of all moneys borrowed of her * * * for or on behalf of said business." This contract is under seal, and is dated November 15, 1894. This contract is to be read and construed in the light of the circumstances surrounding the establishment and carrying on of the business and attending the making of the contract. These circumstances were, in substance, the following: in 1893, the plaintiff and his brother, John P. McGowan, were in Massachusetts working upon the railroad. John P.'s habits were not entirely good, and he did not save his earnings. Their mother, Annie McGowan, was desirous to have them engage in some other business. For that purpose she purchased a building in North Barre, the first story of which could be used for a grocery store, and the second story for a tenement. She induced the brothers to come there and go into the grocery business. She gave them the use of the building, and furnished them, without interest, some $1,400 to start the business with. The plaintiff had a wife and child. John P. was unmarried. The plaintiff furnished $300 or $350 to put into the business. He borrowed of an aunt $200, which is a part of the debts contracted on behalf of the business which the defendants were to pay. The mother, the plaintiff and family, and John P. lived in the tenement over the store, out of the store. The plaintiff and John P. devoted their time to conducting the business. Neither of them received wages. On account of the habits of John P. the business was controlled mostly by the plaintiff, but there was an understanding that if John P.'s habits improved he was to have an equal share in the business with the plaintiff. The business was thus started in the name of the 'Boston Branch Grocery Store" the 1st of April, 1894, and continued until the time of the sale. During the last part of the time, the plaintiff procured the printing of some bills headed, "The Boston Branch Grocery Store, Martin J. McGowan, Proprietor." Money received from the business had been deposited in a bank, and this account was kept in the plaintiff's name, and he drew the checks to pay for purchases. John P.'s habits were not always what they should be. About the 1st of November the relations of the brothers became unpleasant, and John P. went to Massachusetts. His mother procured his return, and procured her brother to come and to see if a settlement could not be brought about. After he came and had had some talk with the plaintiff about a settlement, on the evening of Saturday, the 10th of November, the plaintiff, as was his usual habit, took from the money drawer of the store nearly what money there was there and took it to his tenement. This money all came from the business of the store, and was not returned. The plaintiff also had money on deposit in the bank coming from the same source. The parties do not agree in regard to what was said about this money during the negotiations which resulted in the contract. They agree that the negotiations which so resulted were so far advanced that the defendants took possession of the store on Monday morning, November 12th, and continued in possession until the contract was signed. On November 14th the plaintiff drew most of the money out of the bank. Two or three forms of a contract were drawn, and finally the one which was executed, on November 15th. Construed in the light of these surroundings, this money which the plaintiff took belonged to and was a part of the business done under the name of the Boston Branch Grocery Store, as much as the goods in the store. It came from the sale of such goods, and was intended to be used in purchasing goods for the store. It was a part of the capital which the mother and plaintiff had furnished to carry on the business. By conveying to the defendants all his interest in the business the plaintiff...