Scott v. Bailey

• Decision Date: 09 February 1901
• Citation: Scott v. Bailey, 73 Vt. 49, 50 A. 557 (Vt. 1901)
• Parties: SCOTT v. BAILEY.
• Court: Vermont Supreme Court

50 A. 557

73 Vt. 49

SCOTT

v. BAILEY.

Supreme Court of Vermont. Caledonia.

Feb. 9, 1901.

Exceptions from Caledonia county court; Taft, Chief Judge.

Action by F. A. Scott against George Bailey. Judgment for plaintiff, and defendant excepts. Reversed.

Argued before TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

H. A. Farnham and Porter & Thompson, for plaintiff.

Harland B. Howe, for defendant.

WATSON, J. The plaintiff is engaged in the wholesale and retail grocery business in the village of St. Johnsbury. The defendant is a farmer in the town of Danville. On April 24, 1897, the plaintiff sold and delivered to the defendant a barrel of flour for the price of $6, which sum and interest the plaintiff here seeks to recover. The defendant admitted the purchasing of the flour, but claimed he paid for it during the last of June or the first of July following its purchase, which payment the plaintiff denied. The defendant testified that he went to the plaintiff's store during the latter part of June or the first of July, 1897, at about 6 or 7 o'clock in the afternoon, to pay for the flour; that just as he was entering the store he met the plaintiff's bookkeeper going out of the store; that he inquired of her if the plaintiff was in the store, and was informed that he was away; that he then told her he had come to pay for the flour in question, and was directed by her to pay the clerks in the store; and that he then entered, and found two clerks, who were just closing the store for the day, and paid one of them $6 for the flour, and requested him to cross the charge off the plaintiff's books, which the clerk said he would do, or have the plaintiff, on his return, send the defendant a receipt. In cross-examination of the defendant the plaintiff was allowed, subject to exception, to show that a charge of the barrel of flour in question was made to the defendant on the date of the sale; that in making payments to and settlements with the plaintiff before the time in question, the defendant had always been very particular to make them with and to the plaintiff in person; that several times he had waited in the store a long time for the plaintiff to return, in order that he might make his settlement with and payment to him in preference to any of the clerks. The fact that the defendant was in the habit of calling for the plaintiff to make settlements with and payments to him is not evidence tending to show that on the occasion in question the payment was not made to some other person,—that it was not made, in fact, as the defendant's evidence tended to show; because, as was said in Phelps v. Conant 30 Vt. 277, in order to have one fact prove another, there must be a necessary and probable...