Newton v. Higgins

• Decision Date: 01 January 1829
• Citation: 2 Vt. 366
• Parties: JABEZ NEWTON v. IRA S. HIGGINS
• Court: Vermont Supreme Court

2 Vt. 366

JABEZ NEWTON v. IRA S. HIGGINS

Supreme Court of Vermont, Franklin

January, 1829

This was an action of book debt originally brought against the defendant, Higgins, and one Twitchell, as partners. After judgment to account in the county court, an auditor was appointed to adjust the accounts of the parties, and he afterwards made the following report.

" The undersigned auditor reports, that he duly notified the parties to attend the auditing of their book accounts at St Albans, on the 26th day of May, 1828, at which time and place they appeared, and, at the request of the defendants, the audit was adjourned to the third Monday of June, A. D. 1828 and again by order of the auditor to the 20th day of June 1828; when the plaintiff and Ira S. Higgins, one of the defendants named in the rule, duly appeared, and it was suggested and proved to the auditor that since the last continuance of said audit, the other defendant named in said rule had deceased. Upon this the said Higgins insisted that the audit could not legally proceed between the plaintiff and himself only, and that all further proceedings under the rule should cease. But the auditor determined that he could lawfully proceed between the plaintiff and Higgins only whereupon they entered upon the examination and trial of their accounts. The plaintiff exhibited the account hereto annexed, and proved the performance by himself of twenty three and one half days work, as a mill wright, at the price charged, upon the employment and request of Higgins, acting for himself and Twitchell, then in partnership. It was also proved, that during this time George Newton, a son of the plaintiff, and more than twenty-one years old, worked with the plaintiff eight and one half days, at one dollar and fifty cents per day; which work constitutes the two last items of the account. These two items, amounting to twelve dollars and seventy-five cents, the auditor has disallowed in this action, because it appeared to him they constituted a demand in favor of the said George Newton, and not of the plaintiff. The defence relied on was, that previous to the commencement of the plaintiff's work, it was agreed between him and Higgins, that payment should be made in neat cattle, on the first day of October, 1827, delivered at Swanton Falls, where Twitchel lived, Whereas, the plaintiff contended, that though he was to receive cattle on the first day of October, they were to be delivered at St. Albans village, and not elsewhere. As a witness to prove this agreement, the defendant offered Isaac Warner, jr. who was objected to because he was bail for the appeal of this suit and he was rejected. The defendant then moved for a continuance till term-time of the court, to the end that the bail might be changed, and filed the affidavit of Higgins. But it appearing that Warner became bail with the full knowledge of Higgins, the auditor refused the continuance. The defendant produced evidence tending to prove the agreement aforesaid, and the plaintiff introduced evidence to disprove it, or rather to prove that the cattle were to be delivered at St. Albans and not at Swanton. And the defendant also proved, that on the 1st day of October, 1827, at Swanton Falls, Twitchel turned out sufficient saleable, neat cattle, at a fair appraisal, for more than enough to pay this demand, intending thereby to pay and satisfy the plaintiff's account. The plaintiff was not present at the turning out of the cattle at Swanton. Upon the whole evidence in relation to the agreement,...