Ricker v. Adams

• Decision Date: 03 March 1887
• Citation: 8 A. 278,59 Vt. 154
• Parties: HARVEY W. RICKER v. HENRY W. ADAMS
• Court: Vermont Supreme Court

8 A. 278

59 Vt. 154

HARVEY W. RICKER v. HENRY W. ADAMS

Supreme Court of Vermont

March 3, 1887

BOOK ACCOUNT. Heard on an auditor's report, June Term, 1885 Orange County, ROWELL, J., presiding. Judgment for the defendant.

In April, 1883, the defendant and one Durant were and had been for a long time partners under the firm name of Durant & Adams. The firm was dissolved April 26th, said. Durant receiving all the partnership property and agreeing to pay all the debts against the firm. Adams executed a quit-claim deed of his interest to Durant, and Durant executed a mortgage of all the real estate owned by the firm to Adams one condition of which was that Durant should pay all the partnership debts. The plaintiff had an account against the said firm, and on April 30, 1883, accepted said Durant's note in payment of the same. The auditor found:

"From all the evidence in the case bearing upon that question the auditor finds that said note was given in payment of the balance due on said account, and that it was accepted by the plaintiff in payment of the same, and it was so understood by the parties at the time; but the auditor finds that at the time said note was thus given and accepted, the plaintiff understood, and had a right to understand from what defendant then told him, that said mortgage from said Durant to the defendant was to secure the defendant and all the creditors of the firm of Durant & Adams, including the plaintiff, and that said Durant could not dispose of said mortgaged property until all said creditors were paid. And the plaintiff accepted said note in payment as aforesaid, with the understanding that his debt was thus protected.

"At that time the plaintiff had never seen said mortgage, and knew nothing about it or its provisions in fact, although the same was before that time on record, as before stated, except what defendant then told him. There was no intentional fraud or misrepresentation on the part of the defendant."

Affirmed.

Ide & Stafford, for the plaintiff.

It was not necessary for the plaintiff to surrender the note to the defendant before bringing suit. It is enough that it had never been negotiated and was produced at the trial. Street v. Hall, 29 Vt. 165; Tozier v. Crafts, 123 Mass. 480.

Smith v. Sloan, for the defendant.

The contract was absolute until disaffirmed or rescinded by the parties; and the rule of law applies, that if one party wishes to disaffirm a contract he must do so at once, and put the other party in statu quo; and if he chooses to ratify it it is forever affirmed, Downer v. Smith, 32 Vt. 1; 1 Add. Con. 451. The contract was affirmed. Esterbrook v. Sweet, 116 Mass. 303; Coolidge v. Brigham, 1 Met. 547.

OPINION

POWERS, J.

The auditor's report shows that the plaintiff accepted Durant's note in full payment of his account against the firm of Durant & Adams. In this State a promissory note either of the debtor or a third person, given in settlement of an account or previous debt, is presumptively a payment of...