Smith v. Coolidge

• Decision Date: 08 August 1896
• Citation: 68 Vt. 516,35 A. 432
• Parties: SMITH v. COOLIDGE.
• Court: Vermont Supreme Court

35 A. 432

68 Vt. 516

SMITH

v. COOLIDGE.

Supreme Court of Vermont. Windham.

Aug. 8, 1896.

Exceptions from Windham county court; James M. Tyler, Judge.

Assumpsit by George G. Smith against H. O. Coolidge. Judgment for defendant, and plaintiff excepts. Reversed.

The action was for the recovery of a balance due the plaintiff on open account. It appeared that the plaintiff in 1888 was a general merchant doing business in South Londonderry, and so remained down to the time of the hearing. The defendants, Coolidge and Batchelder, were in 1888 manufacturers and dealers in confectionery at Brattleboro, under the style of F. L. Batchelder & Co. In September, 1888, the defendant Coolidge purchased of the plaintiff, for the firm, a quantity of maple sugar, and agreed to pay for the same in confectionery, to be delivered to the plaintiff, in South Londonderry, in such quantities and at such times as thereafter ordered. Under this agreement the plaintiff shipped the sugar to the defendants, and sent them, from time to time, orders for confectionery, to be applied on this account. These orders were filled down to and including April, 1889. In the fall of 1888 the defendant Coolidge retired from the firm, and Batchelder continued the business alone at Brattleboro, filling the orders of the plaintiff, down to February, 1889. He then sold out his business at Brattleboro, and moved to Manchester, N. H., where he engaged in the same business, and where he continued to fill the orders of the plaintiff for the months of March and April. In May and June the plaintiff sent Batchelder several orders, which were not filled. Not being able to obtain payment from Batchelder, the plaintiff wrote Coolidge that he should look to him for payment And, after some further correspondence, Coolidge wrote the plaintiff that he had made arrangements with one Miller, of Brattleboro, to fill the plaintiff's orders on his account; and the plaintiff sent Miller one order, which was properly filled. About this time the plaintiff and Coolidge had a looking over of accounts, in which Coolidge insisted that the plaintiff had received more confectionery than he had given credit for. Some feeling arose during the conversation, and the plaintiff then said that he claimed that the account had become payable in money, by reason of the failure of Batchelder to fill his orders in May and June, and that he should insist upon the payment of the balance of the account in money; and soon after this he brought this suit The referee found, in fact that Coolidge had made an arrangement with Miller to fill the orders of...