| Vt. | Mar 15, 1842
The opinion of the court was delivered by
The instruction of the court to the jury, that, on the facts stated in the exceptions, the plaintiff was entitled to recover, was undoubtedly correct.
The rciad had not been opened in the manner pointed out by statute, when the plaintiff purchased the farm of Bass. The plaintiff was told by Bass that there was a claim on the town for damages. Unless the road was opened in the manner pointed out by statute, the plaintiff could keep the road enclosed, unaffected by any previous conversation, or parol agreement, between Bass and the selectmen. It was competent for the selectmen'to adjust the claim for damages, and draw an order therefor before opening the road, and this order, not having been paid, the plaintiff was entitled to recover of the town.
On the motion in arrest, we have only to remark, that, to enable the defendant to prevail, it must appear there was an omission to state, in the declaration, matters of substance, and which cannot be supposed to have been proved on the trial. This declaration is very loosely and inartificially drawn. It may be considered, however, as containing the substance of a good declaration, and all the facts which would be necessary to a recovery, if they had been properly set forth. The consideration of the promise, the authority of the agents who made the promise, the promise and the breach, are set forth, and, after a verdict, we are inclined to sustain it. The judgment of the county court is therefore affirmed.