
    Anson Harrington v. Solomon Wells.
    The vendee of personal chattels is not at liberty to rescind the contract, merely upon the ground of inadequacy of price. If the vendor was guilty of fraud in the sale, the vendee may, upon discovering it, rescind the contract. But the question of fraud must, in such case, be determined by the triers of the fact.
    If the parties have stipulated the rule of damages, it must be adhered to, although it may do manifest injustice.
    If one agree to pay a certain sum in specific or collateral articles, worth much less than the agreed price, but fail to fulfil, he is liable for the sum stipulated.
    If one agree to pay a certain sum in specific property, which he represents tobe, at the time, at a certain place, when,in fact, he has no such property ; and the remainder of an entire sum in an order for work, the promissee, upon discovering such misrepresentation, is not bound to demand either the property, or the order; but may sue presently for the broach of the contract.
    The plaintiff commenced an action against the defendant. The defendant filed a declaration on book to recover against the plaintiff a balance due the defendant, that it might be pleaded in offset to the plaintiff’s claim. Judgment to account having been rendered by the county court in the declaration on book, an auditor was appointed, who afterwards reported, that the defendant, Wells, presented an account against the plaintiff Harrington, for a chaise and harness, in relation to which the auditor found that Harrington was at Wells’ house, in Middlesex, in July, 1831, at which time Wells proposed to sell Harrington the chaise and harness in question and to have them applied on a note which the latter held against the former; that Harrington refused so to purchase, saying, that if he did purchase, Wells must take a sleigh which Harrington had at one Taplin’s, in Montpelier; that Wells called the chaise and harness worth $55, and Harrington called the sleigh worth $50, and said if it was not worth that sum, he would make up the deficiency ; that the parties finally agreed that Wells should take the sleigh at Taplin’s and also an order on Taplin, who was a wheelwright, for five dollars, payable in his work, and that Harrington should take the chaise and harness ; that Harrington then took the chaise and harness away ; that in one or two days afterwards, in the absence of Wells and without his consent or knowledge, Harrington returned the chaise and harness and put them into Wells’shed or barn, where they remained until 1834, when they were taken and sold at auction, by the collector of Middlesex, in payment of taxes against Harrington; that when Wells ascertained that Harrington had returned the chaise and harness, he gave his family directions not to use either, as they were not his property, and that it did not appear that they were used by Wells or his family after such return ; that Harrington, after having so returned the property, treated it as his own so far as this, — he offered to sell it, saying, at the same time, that it was at Wells’ and that he had it of Wells ; that there was no evidence tending to show that Harrington at any time in the spring, summer or fall of 1831, was the owner of a sleigh, but, prior to the contract between the Harrington had a conversation with Taplin about purchasing a sleigh, the price of which was $25, but the purchase was not completed and afterwards Taplin sold the sleigh to another person.
    The auditor further found that Wells did not go to Taplin’s to enquire for or see the sleigh until November, 1831, previous to which time Taplin had- sold the sleigh which Harrington talked of purchasing; that it was not known that Taplin was then at home or seen by Wells; that Wells never called on Harrington for the five dollar order nor for the sleigh. The auditor also found that the value of the chaise and harness, at the time of the sale of it to Harrington, was seventeen dollars, and that the value of the sleigh, which Harrington talked of purchasing of Taplin, was $25. If the court should be of the opinion, from the facts found by the auditor, that Wells could maintain this action to recover what he called his chaise and harness worth, at the time of the contract, then the auditor found for him to recover $75,90; but if Wells was only entitled to recover the value of the property, then the auditor found $26,73 due to him to balance book accounts.
    The county court decided that Wells was entitled to recover the price of the chaise and harness, agreed upon by the parties, and rendered a judgment accordingly.
    The plaintiff, Harrington, excepted to the decision of the county court.
    
      A. Spalding, for plaintiff.
    I. The report discloses a special contract, which is not a proper subject of book charge. Swift’s Dig. 582. 1 Aik. R. 73. 2 Vt. R. 326.
    II. No demand was ever made on Harrington for the sleigh.
    It is contended that it was incumbent upon Wells to demand the sleigh of Harrington before he would be justified in bringing his suit.
    III. Wells neglected to call on Taplin in a reasonable time for the sleigh. Neither did he give notice to Harrington, upon his not receiving it, which, it is contended, amounts to a waiver of the contract on his part.
    Where a person has paid money upon a contract, which has not been performed, he may either affirm the agreement by bringing a special action of assumpsit thereon for general damages, or he may disaffirm it, and recover back the money so paid, by action of indebitatus assumpsit for money had and received. Com. on Con. 70. 2 Burr. 1010.
    IY. The damages, if any, should.be the value of the property at the time of the sale.
    In this case, Wells claims to recover more than three times the just value of the property, which is certainly contrary to equity and good conscience. 3 N. Carolina R. 278.
    If a contract be unconscionable, the court will render such damages as may appear reasonable, without being bound by the terms of the contract. Cutler v. How, 8 Mass. R. 257. Cutler v. Johnson, do. 266. Jestons v. Brooke, Cowp. 793. Baxter et al. v. Wales, 12 Mass. R. 365.
    
      Wm. Upham, for defendant.
    1. It is insisted by the defendant, that the record shows no error in the decision of the court below. The auditor has reported that the defendant called his chaise and harness worth $55, and that he sold them to the plaintiff for that sum, and agreed to receive in payment a sleigh which the plaintiff said he had at one Taplin’s in Montpelier, worth $50, and the balance of $5, in an order on Taplin payable in his work. The parties having so contracted, the defendant is entitled to recover the price agreed upon.
    2. The chaise and harness were properly charged on book by the defendant, and he has pursued his legal remedy to recover the sum which the plaintiff agreed to pay for them.
    It is well settled that a special agreement respecting the mode of payment will not exclude the party from the right to charge, on book, the articles sold. Swifts Ev. 84. 1 Swift’s Dig. 582, 729. Fay et al. v. Green, 2 Aik. R. 386, 389. Boardmanv. Keeler, et al., 2 Vt. R. 65. Fry v. Slyfield, 3 Vt. R. 246. Blish et al. v. Granger, 6 Vt. R. 340. Way v. Wakefield, 7 Yt. R. 223.
   The opinion of the court was delivered by

Redfield, J.

— From the auditor’s report in this case, we cannot consider the contract concerning the chaise, as any thing else, but an absolute, unconditional sale. If so, the plaintiff had no right to return it and thus rescind the contract, unless the defendant was guilty of fraud in the sale, which was not found by the auditor. Thornton v. Wynn, 12 Wheaton’s R. 183, S. C. 6 Pet. Conch R. 508. Strut v. Blay, 2 Barn. & Adol. 456, S. C. 22 Eng. C. L. 122.

2. We do not see how the plaintiff can reduce the defendant’s claim for the chaise to a mere quantum valebat. The defendant asked fifty five dollars for the chaise and the plaintiff agreed to give that sum, in a sleigh worth $50, and an order for $5. If the sleigh was not worth $50, plaintiff agreed to make up the deficiency. How then can the recovery be reduced to the actual value of the article ? Surely not unless we can substitute our own notion of justice in the place of the contract of parties. A contract for ten bushels of oats on a given day, if not fulfiled, is good only for the value of the commodity, at the time and place of delivery. But a contract for ten dollars, in oats at one dollar a bushel, if not fulfilled, is good for ten dollars, because the parties have stipulated the damages.

3. Was the defendant bound to make demand of the sleigh at Taplin’s or of the order of the plaintiff? We think not. The plaintiff sold the defendant a sleigh, then in existence, not one thereafter to be made. He had no such sleigh and this was well known to himself at the time of the contract. This was such a fraud as would excuse any demand, which must of course prove unavailing. Bowdell v. Parsons, 10 East, 359. If the plaintiff was not in a situation to perform the contract, as stipulated, the defendant was not bound to accept of a part performance, but might sue for the stipulated price of the commodity sold.

4. Was the sale at such an unconscionable price as to justify the plaintiff in rescinding it ? Not unless there was evidence of fraud. And if so, the question must have been decided by the triers of the fact, and not by the court. Brown v. Sawyer, 1 Aikens’ R. 130. It is very questionable indeed, whether mere inadequacy of price, will justify even a court of equity in setting aside a contract of sale. Wendell v. Van Rensselaer, 1 Johns. Ch. R. 344. Barrow v. Rhinelander, Id. 550. That has sometimes indeed been done, for that reason alone. It is very certain, however, if the thing be understandingly done, mere inadequacy of price will never excuse the performance of a contract.

Judgment affirmed.  