45 Vt. 1 | Vt. | 1872
The plaintiff’s evidence, which was the only evidence in the, case upon the point on which the exception arises, was, “ that the agreement was that the town would pay his son Martin (the intestate) a bounty of two hundred dollars, and if they paid anybody else any more, they would pay his son Martin just as much as they paid anybody; that Liseomb (the selectman with whom the trade was made) said at the same time to the witness, ‘ you will get more than two hundred dollars bounty because we have got to pay what other folks pay, and 'we have got to have the men.’ ” The town was raising men at that time to fill a quota of ten men, and had given its selectmen authority to raise the men necessary to fill the quota. . There was nolhing in the testimony stating the contract that, in terms, limited it to the payment of two hundred dollars, and as much more as the town should pay to fill the then existing call upon the town for- men.
Was it error for the court, under this state of the testimony, to submit to the jury to find whether the parties to the contract mutually understood that the payment of more than two hundred dollars ■depended upon whether the town should pay more than that sum to fill the then existing call upon the town for men ? The answer to this question depends upon whether there was any evidence tending to show that the parties to the contract might have-so understood it. If there was any evidence having such a tendency, it was not only not error for the court to submit that issue to the jury, but it would have oeen error in the court not to have submitted it to the jury. It is clearly the duty of the court, by repeated decisions in this state, and elsewhere, to submit to the jury, e^ery material issue raised by the evidence in the case. We think the facts, that there was no other call then pending, that the selectmen were only authorized to raise men to fill the then existing call, which was probably known to the plaintiff, and the language used by Lis: comb, “ we have got to pay what other folks pay, and we have got to have the men,” evidently referring to the ten men which the town was then called upon to raise, all tended to show that the parties might have understood that the obligation of the town to pay the intestate more than two hundred dollars depended upon
Judgment affirmed.
