William H. Noyes And John H. Hinman v. Charles Pierce

• Decision Date: 03 October 1923
• Citation: 122 A. 896,97 Vt. 188
• Parties: WILLIAM H. NOYES AND JOHN H. HINMAN v. CHARLES PIERCE
• Court: Vermont Supreme Court

122 A. 896

97 Vt. 188

WILLIAM H. NOYES AND JOHN H. HINMAN v. CHARLES PIERCE

Supreme Court of Vermont

October 3, 1923

May Term, 1923.

ACTION OF TROVER. Plea, general denial. Trial by the court at the December Term, 1921, Caledonia County, Willcox, J presiding. Judgment and verdict for the defendant. The plaintiffs excepted. The opinion states the case.

Judgment reversed and judgment for plaintiff for $ 1,162.21 with interest from December 7, 1921, as of the May Term, A. D. 1923.

Searles & Graves for the plaintiffs.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

This is a complaint in trover, for the conversion of certain personal property described in a lien note dated December 18, 1920, payable four months from date. The defendant answered by general denial. The case was tried by the court; judgment for the defendant. The case comes here on exceptions by plaintiffs to the admission of evidence finding of facts and to the judgment thereon.

The lien note, called the Pierce note, and signed by defendant, was overdue, and unpaid, and unquestionably valid. The property conditionally sold to the defendant covered by it was to be and remain plaintiffs', with right of possession and control until the note was paid. The face of the note and the value of the property converted was $ 1,125.00 as of September 22, 1921. And the court found that the property described in the lien note was practically all sold by defendant without plaintiffs' consent, in violation of the terms of the note, that none of the property was delivered to the plaintiffs on demand, and that the plaintiffs would have been entitled to recover $ 1,177.21 as of December 7, 1921, had the plaintiffs not entered into the arrangement with the defendant on September 22, 1921, at the time the property was advertised by Sheriff Garfield for sale at public auction on the lien note. Respecting the arrangement, the court says that "in the light of all the circumstances disclosed the court finds that the plaintiffs waived their undoubted right to complain against the defendant for the conversion of the property and * * unconditionally agreed to accept the Hendricks' note (the face value of which was $ 342.50) and the difference between the value of said note and the value of the Pierce note in money in payment of the Pierce note and in lieu of the lien on the property covered by it." It fairly appears from the findings that the matter was left with Garfield to be adjusted according to this agreement, and that Garfield did accept the Hendricks' note and received payment thereon November 1, 1921, of $ 15.00, at a time after the time had passed under the conditions imposed. These findings make a case for plaintiffs unless overcome by the defense relied upon. The right to make this defense under the general denial is challenged by plaintiffs' exceptions.

Since the enactment of the Practice Act, general denial puts in issue the material allegations of the pleadings to which it is addressed. Burlington Grocery Co. v. Lines et al., 96 Vt. 405, 120 A. 169; McDonough v. Hanger, 94 Vt. 195, 111 A. 452; Dernier v. Rutland Ry. Lt. & P. Co., 94 Vt. 187, 110 A. 4. Now, a defense like accord and satisfaction, or waiver of a right of action already accrued must be pleaded. If this claim was to be relied upon it should have been included in the answer. Nichols v. Lane, 93 Vt. 87, 106 A. 592; Bradley v. Blandin, 92 Vt. 313, 104 A. 11. In the latest cases before this Court where this subject is treated and the cases reviewed, it is held that it is now necessary that all matters relied upon as an affirmative defense should be specially pleaded. McAllister v. Benjamin, 96 Vt. 475, 121 A. 263; Howard Nat. Bk. v. Wilson, 96 Vt. 438, 120 A. 889. And a defense which ought to be pleaded, but is not, cannot be availed of though it necessarily appears in the evidence. Poole v. Mass. Mutual Accident Co., 75 Vt. 85, 53 A. 331.

The contention that defendant was in effect permitted by the court to withdraw his concession that he did not claim a compromise, does not relieve him from the vital objection that the issue is not made by the pleadings. Nor can it be obviated on the theory that the pleadings were treated as amended, for the court expressly states in the findings that the conduct of the trial on this theory of defense "was not acquiesced in by the plaintiffs. The court permitted this line of testimony to be entered into notwithstanding that the case stood upon complaint and general issue." But the plaintiffs without consent were bound only by the issues made and might rightfully rely thereon. In the circumstances therefore the findings relating to a waiver were outside of the case as made by the pleadings and unavailable.

But notwithstanding the shortage in pleadings, the findings do not support the defense. The agreement shows that at most it was an unsatisfied accord. The agreement to accept was not an acceptance, neither was the acceptance of the Hendricks' note an acceptance so as to constitute a release or discharge of the first obligation until the balance in money was paid. The court does not find that plaintiffs agreed to accept the Hendricks' note and the naked promise of the defendant to pay the money in lieu of the Pierce note and the lien on the property, in discharge of the lien, but only to accept the difference in money. It amounts only to an agreement to accept the Hendricks' note in part payment, on payment of the difference, and did not discharge the original debt. Hard v. Burton, 62 Vt. 314, 20 A. 269.

It was not the mere promise to pay the money, but the payment of the money itself, that the plaintiffs agreed to accept in discharge of the obligation. To hold otherwise would be to enlarge the contract to an agreement to accept the new promise of defendant to pay the money in lieu of the money as agreed, which is not permissible. Sargent v. Donahue , 94 Vt. 271, 110 A. 442. Besides the promise to pay the balance was but an agreement to do what he was legally bound to do. Such a promise is without consideration and therefore unenforceable. Cobb v. Cowdery, 40 Vt. 25, 94 A. D. 370; Mason v. Peters, 4 Vt. 101. The case comes well within the familiar rule that an accord without satisfaction does not bar the action on the original undertaking. Manley v. Mutual Fire Ins. Co., 78 Vt. 331, 62 A. 1020, 6 Ann. Cas. 562. Mere readiness to perform an accord or a tender of performance, or even part performance and a readiness to perform the rest, is not sufficient. Sargent v. Donahue, supra; Prest v. Cole, 183 Mass. 283, 67 N.E. 246; Hosler v. Hursh, 151 Pa. 415, 25 A. 52.

Nor does the defendant claim in his brief that a settlement or accord and satisfaction was found by the court, but relies upon the waiver of his right of action. The holding that plaintiffs waived their right is based solely upon the agreement to accept the Hendricks' note and the balance of the money as soon as he sold certain property which the court finds was to be October 1, 1921.

To defeat the plaintiffs, the right of action must be extinguished either by accord and satisfaction or a waiver amounting to an estoppel. The right to maintain this action for the property depended upon the satisfaction of the debt. See Root v. Lord, 23 Vt. 568; Reed v. Starkey, 69 Vt. 200, 37 A. 297. The relinquishment of the debt and waiver of the right to sue for conversion, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied upon as a waiver must be such as to estop a party from insisting on the right claimed to have been relinquished. 29 A. & E. Enc., p. 1097; Rising v. Cummings 47 Vt. 345; and see Felt et al. v. Davis, 48 Vt. 506; Rogers v. Whitney, 91 Vt. 79, 99 A. 419; Stevens v. Blood, 90 Vt. 81, 96...