Rioux v. Ryegate Brick Co.

• Decision Date: 03 March 1900
• Court: Vermont Supreme Court
• Parties: RIOUX v. RYEGATE BRICK CO.

47 A. 406

72 Vt. 148

RIOUX

v. RYEGATE BRICK CO.

Supreme Court of Vermont. Caledonia.

March 3, 1900.

Exceptions from Caledonia county court; Watson, Judge.

Assumpsit by Alfred Rioux against Martin H. Gibson and John Gibson, partners under the firm name of the Ryegate Brick Company. Judgment for plaintiff, and defendants excepted. Affirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

E. W. Smith and Scott Sloane, for plaintiff.

Dunnett & Slack, for defendants.

ROWELL, J. By the contract in question, made and executed the 2d of March, 1894, the plaintiff was to furnish help, horses, and everything else required to carry on the brick business that the defendants were not to furnish, and make for the defendants in their brickyard, shaving the clay for that purpose, a million brick a year for five years, and as many more as the defendants wanted, at so much a thousand, packed on the cars. The defendants had "the privilege of furnishing" the plaintiff hay, provisions, and groceries, I the price not to exceed what he would have to pay for the same grade of goods elsewhere; and all brick sold each month were to be paid J for on the 15th of the following month. The referee finds that at the time the contract was made the plaintiff was a poor man, without the money, property, or credit necessary to employ and board the men and teams necessary to carry out the contract, and continued in the same financial condition up to the time this suit was commenced, which was known to the defendants when the contract was made and when they refused to furnish supplies as below stated. The finding that the defendants knew the plaintiff's financial condition at the time the contract was made is challenged as not supported by the evidence. But we think it a warrantable deduction from what the referee says he based it upon. The defendants saw the plaintiff in Gonic, N. H., where he lived, and there commenced negotiations with him; and the fact that as soon as he moved to Ryegate, which was the 3d of April, and before he could have done any work under the contract, the defendants, without, as far as appears, having learned anything new about him, and, as it were, as matter of course, began to furnish on credit all the provisions and supplies for his family, including his employés, and to pay his men, as the referee finds they did, affords of itself pretty good ground for saying that they knew from the first that they would have to do that in order to enable him to go on with the contract. And, besides, their concession on trial that he had no money or property to carry on the contract except what he was entitled to receive thereunder from them, being unlimited as to time, and coupled with the fact that they did not claim by their testimony that they supposed otherwise when the contract was made, is capable of being construed to mean, and probably does mean, that he had no other means at any time, neither when the contract was made nor afterwards; and, as the concession may properly be taken to have been based on knowledge, the referee might well have inferred that the knowledge and the concession were coextensive in point of time. The defendants continued to furnish supplies and to pay help to and including September 15th, and refused to do either thereafter. Up to this time the plaintiff had burned three kilns of brick, one in June and two in August, which produced, allowing the kilns to be alike, 1,162,500 brick, such as the contract called for; and on the 3d of September he had molded, dried, and hicked in the yard enough for another kiln, a part of which, at least, he packed in the kiln after September 15th, and the kiln was burned the latter part of October. The plaintiff made 1,500,000 brick in all, such as the contract called for, which the defendants have sold and received pay for; but at the time suit was commenced—November 15, 1894—the defendants had sold less than half a million, leaving more than a million in the yard unsold; and those sold, with certain other items allowed the plaintiff, made his credit at that time, as the judgment was made up, $1,904.41, and the defendants had paid him $2,638.86, thus largely overpaying him on that basis; but the labor for making the brick left in the yard unsold came to $3,173.48 more, as allowed by the referee, and those brick were sold mostly in 1895 and 1896, and before the 15th of September of the latter year. Soon after the plaintiff commenced making brick, the defendants told him they could and would sell all he could make, and wanted him to make more than a million that season. Relying upon this, he employed more men and made more brick than he otherwise would, fully believing that the brick so made would be sold mostly that summer and fall, and the rest of them by the time brickmaking would commence in the spring. On September 15th, when the defendants refused to make further advances, there were about 750,000 brick in the yard that the plaintiff had made, and he then notified them that he had nothing to eat, no money to buy provisions, none to pay his help, and must work somewhere to get something to live on unless they would continue to furnish supplies to enable him to go on with the contract. The defendants refused to furnish him, and claimed as an excuse, as the referee says: (1) That they were not obliged to do so under the contract;...