¶1The opinion of the court was delivered by
¶2After the decisions of this court in Martin v. Fuller, 16 Vt. 108, and Scott v. Montague, 16 Vt. 164, it is impossible to consider this a sale for payment in hand. It was, as to the one hundred dollar note, a sale upon two years’ credit, which had not expired at the time of rendering the judgment in the court below. That being the fact, the cases referred to equally settle the point, that neither indebitatus assumpsit, nor book account, can be maintained. The case, then, was correctly decided in the court below.
¶3The English decisions seem, also, fully to confirm the same view ; 1, That it is a sale upon credit; Mussen v. Price, 4 East 147; Millar v. Shaw, cited in the argument of Mussen v. Price; — 2, That the action of indebitatus assumpsit will not lie until the credit is expired, — cases cited last above ; also Dutton v. Solomonson, 3 B. & P. 582, — even where the vendee refuses to accept a bill drawn by the vendor for the price. But if the goods are to be paid for by a bill upon a third person, payable upon time, which the drawee refuses to accept, it would seem to be the doctrine of the English cases, that the vendor might sue immediately; Hickling v. Hardy, 7 Taunt. 311, [2 E. C. L. 118.] But where the contract was so fraudulent, that the vendor might have disregarded it and maintained trover, it was held, that, having sued upon it, he thereby affirmed it, and, being on time, that he could not maintain indebitatus assumpsit, until the credit had expired; Ferguson v. Carrington, 9 B. & C. 59, [17 E. C. L. 330.] But all the English cases, where the subject is named, concur in the proposition, that a special action upon the contract to give the securities stipulated may be maintained, whenever any default in that particular arises.
¶4Judgment affirmed.