Downer v. Sinclair

The opinion of the court was delivered by

Hebard J.

The facts detailed do not amount to a payment. There is a difference between making a payment of a subsisting debt, and doing that, which, on suit being brought, amounts to a defence. A tender of money is not payment, unless it is received. And the same is true of specific arti- . .... cíes. The idea of a payment carries along with it the supposition that the money, or other thing, was delivered by the payor to the payee, and by him received. Controversies have arisen in relation to the construction that should be put upon the aet of receiving specific articles — whether they were received in payment of an existing debt, or for some other purpose ; but there can be no reason for calling an offer to pay, a payment, when the offer was refused. In this case, the winnowing-mills were not received by the plaintiff actually or constructively. Nor does it appear that he ever knew that the mills were set apart for him ; or even that any had been made. Under this state of facts it would be absurd to call this a payment. This disposes of the first plea.

The second plea in bar presents a different question ; and the plea being demurred .to, it only becomes necessary to inquire whether there is enough set forth to amount to a defence.

The two important averments in this plea are, that the plaintiff promised, in consideration that the defendants would make and deliver these mills, that he would receive them in full discharge of the judgment; and, the corresponding one, that the defendants, relying upon said promise, did make and deliver them. The inquiry here is not, whether the facts set forth in the plea are true, for the plaintiff by demurring, admits them. Now taking the facts set forth to be true, why should not the plaintiff be bound and concluded by them ? The objection is, that there was no consideration for the promise ; but this objection is not well founded. One promise is a good consideration for another; but more especially when both parties, as in this case, have acted under the agreement. Not to hold the plaintiff to his promise, in this case, would be to enable him to practice a fraud upon the defendants. They, relying upon his promise, had made the winnowing-mills. Suppose that, instead of being winnowing-mills, the agreement had been, like the case of Mattison v. Wescott, 13 Vt. 258, for a set of gravestones, worth little, except for the person for whom they were designed; or, which would be a still stronger case, but the same in principle, suppose the agreement had been for a set of family portraits, having no value, except for the particular use and design for which they were made, the injustice of the law that would allow him to absolve himself from such an engagement, would be most manifest.

If, as in the case of Mattison v. Wescott, for such an agreement and promise, an action can be sustained to recover money, there can be no satisfactory reason assigned, why the contract, after being fulfilled, may not be applied agreeably to its terms, in extinguishment of an existing indebtedness.

Judgment of the county court upon the demurrer is reversed, and judgment for the defendants.