The opinion of the court was delivered by
Redfield, J,1. It is argued, in the present case, that .the defendants are entitled to a new trial, because a witness was permitted to testify from a memorandum, and to facts of which, aside from the memorandum, he could not, at the time, and did not profess distinctly to recollect. We do not think the decision below was erroneous in this respect. There are many facts which no memory could possibly carry along, without the aid of memoranda; and *118when they are committed to writing the detail- of the facts is dismissed from the memory, and they are the sooner forgotten, for the very reason that the writing is relied upon. All that is necessary in such a case is that the witness should have a general recollection of the transaction, and also that the memorandum was correctly made at the time it was made. This is the well settled rule now in Westminster Hall. 1 Stark. Ev., 7th ed. 175, and following pages.
2. We do not perceive that the rule of damages laid down by the court was objectionable. If no special contract existed, then the plaintiff could recover as much as he deserved to have for his labor, and the quantum meruit must be estimated by the jury. This they might doubtless do by a per diem, allowance, or by way of commission, or in any other mode they judged proper.
3. Upon the question of the form of action, we do not think there is any good ground of doubt. Whether the remedy may be assumpsit, or must be account, depends upon whether the plaintiff had any property in the wool, and so in the specific money for which it was sold, — or whether the form of the contract was only a mode of determining his compensation for labor. The plaintiff and defendants clearly were not partners among themselves, nor were the defendants either the bailiffs or receivers of the plaintiff. As the entire contract had been performed, and nothing remained but the mere duty on the part of the defendants to pay over the money, there does not seem to be any objection to the general counts. The declaration need be special in those cases only where the claim sounds in damages, and is for the non-performance of a specific engagement, — as in the present case for not making sale of the wool,— or for not collecting the money ; but for not paying over the money a recovery may be had under the general counts.
4. We do not perceive, in a case like the present, any necessity for a special demand. The view we have taken of the case fixes an indebtedness upon the defendants whenever the money was collected; and, in general, a special demand is not necessary in any of those cases where the recovery may be had under the general counts, although doubtless there may be some exceptions to this as a general rule.
.5. The most important practical question, by far, discussed in *119the case, remains to be determined. It seems to have been generally considered that all conversation had in the presence of a party, in regard to the subject of litigation, might properly be given in evidence to the jury. But in Vail v. Strong, 10 Vt. 457, and in Gale v. Lincoln, 11 Vt. 152, some qualification of this rule is established. It is there held, that unless a claim is asserted by the claimant or his agent, and distinctly made to the party, and calling naturally for a reply, mere silence is no ground of inference against one. And we think even in such a case that mere silence ought
not to conclude a party, unless he thereby induces a party to act upon his silence in a manner different from what he otherwise would have acted. There are many cases of this character when one’s silence ought to conclude him. But when the claim is made for the mere purpose of drawing out evidence, as, in the present case, it is obvious must have been the fact, or when it is in the way of altercation, or, in short, unless the party asserting the claim does it with a view to ascertain the claim of the person upon whom he makes the demand, and in order to know how to regulate his own conduct in the matter, and this is known to the opposite party, and he remains silent, and thereby leads the adversary astray, mere silence is, and ought to be, no ground of inference against any one. The liabilities to misapprehension, or misrecollection, or misrepresentation are such, that this silence might be the only security.. To say, under such a dilemma, that silence shall imply assent to all which an antagonist may see fit to assert, would involve an absurdity little less gross than some of the most extravagant caricatures of this caricature loving age. With some men, perhaps, silence would be some ground of inferring assent, and with others none at all. The; testimony then would depend upon the character and habits of the party, — which would lead to the direct trial of the parties, instead of the case.
It is true, when a claim is the subject of conversation in the: hearing of a party against whom the claim is made, and he takes any: part in such conversation, the whole evidence must go to the jury for, by consenting to enter into the conversation,, he thereby makes! his declarations upon the subject evidence,, if his adversary sees fit to avail himself of them,, — and by consenting' ito’nralre’ any declara*120tion in regard to the matter, he thereby puts the matter upon a much stronger ground against him than would mere silence. But even in such a case the jury should be told, in the charge of the court, that neither his declarations, nor his silence, are to be construed into an implied admission of facts beyond the scope of the declarations themselves.
In the present case the declarations of the defendant, Cole, were a virtual denial of the claim made upon them by the plaintiff. We do not well see how it could have been more explicit, unless it had been put in the form of a special traverse. The defendant Cole’s reply to the plaintiff did contain the inducement to such a traverse, that is, it was the allegation of new matter inconsistent with the plaintiff’s claim, but it did not conclude with a formal denial of the plaintiff’s claim, — in other words, the absque hoc clause of the traverse was omitted, and for this reason we are called upon to say it was evidence to go to the jury for them to make such inferences from it as they saw fit. No case, in our judgment, could be more free from doubt. The declaration or the silence of Cole had no tendency to prove an admission of the plaintiff’s claim. We understand the English cases, in regard to admissions implied from silence, to go no farther than we now decide, although it is true the dicta of many of the elementary writers go farther.
The cases cited in Starkie’s Evidence, 2d vol., p. 26, to support the general proposition that a presumption may be made of an admission of a party from acquiescence, or silence, are all where the party lies by - during the exercise of a right interfering with his claim, or where the party, by his silence, has led another into a mistake, which amounts to a virtual fraud, unless he were to abide by his silence. Steele v. Prickett, 2 Stark. R. 471, [3 E. C. L. 473.] Doe v. Allen, 3 Taunt. 78. Duncan v. Scott, 1 Camp. 100. They are cases of acquiescence in the conduct of a party based upon that acquiescence, rather than of silence under the mere assertion of a claim, and when denial could be of no avail, but to lead to altercation. In this latter class of cases, I have not been able to find any decision justifying the presumption of admission from silence merely.
Judgment reversed and cause remanded for a new trial.