Bradley v. Phillips

52 Vt. 517 | Vt. | 1880

The opinion of the court was delivered by

Veazey, J.

The declaration in this case was sufficient. The question was not one of title, but purely of contract. The parties to the suit owned adjoining lands. They complained to each other of respective trespasses, by cutting over the division line, each upon the land of the other. Under these circumstances they each agreed to pay the other at a stipulated rate for the logs they had so cut upon each other’s land. The plaintiff performed the agreement on his part, and sued the defendant in general assumpsit for the amount which the latter had agreed to pay. The defendant claims that recovery cannot be had in this form of declaration. The rule has been repeatedly announced that where there has been a special agreement, the terms of which have been performed, so that nothing remains’but a mere duty to pay money, the general counts are sufficient for the recovery of the sum due. Felton v. Dickenson, 10 Mass. 287 ; Mattocks v. Lyman, 16 Vt. 113. In this case the contract in effect provided a rule to ascertain the sum due. The plaintiff had performed on his part, and nothing remained for the defendant to do but to pay according to agreement. The case is therefore clearly within the rule above indicated. The fact that the defendant’s evidence tended to show that while he agreed to pay for what he had cut north of the line, yet he in that connection denied that he had cut any north of the line, or on the plaintiff’s land, did not change the character of his contract. His agreement was in effect to pay for what he had cut, if any, leaving it for the plaintiff to show how much he had cut.

The defendant also insists that the court erred in its charge to the jury. We think the charge was correct. The parties differed as to what the agreement between them was. The plaintiff’s testimony tended to show that the defendant had agreed to pay for all the logs he had cut north of the division line. The defendant’s evidence, that he only agreed to pay for what he had cut north of that line on the plaintiff’s land, and that some of his cutting had been on land north of the line before the plaintiff got title and while Elwell claimed it, and the effect of his testimony, as he now argues, was a denial of any agreement to pay for his cutting on the Elwell land. The court submitted to the jury to find what the agreement was, and instructed them, in effect, that if they found it as the plaintiff’s evidence tended to show, then he was entitled to recover. As before stated, it was a question of compromise-agreement; and being in parol, and the parties disagreeing as to its terms, it was the province of the jury to determine what it was. The plaintiff’s rebutting evidence was not objected to ; neither was it inconsistent with his previous evidence. Even if it was, it did not change the issue to the jury. The question still remained as to what the parties agreed to do. The court would have had no right to say to the jury, you must discard the rebutting evidence and hold the plaintiff to his original evidence in determining what the agreement was.

The rebutting evidence was put in to meet the turn which the defendant had- undertaken to give to the agreement as the plaintiff first left it. This is the ordinary and proper office of rebuttal under such circumstances. Its inconsistency, if any, with the previous testimony of the plaintiff, might weaken the plaintiff’s case. But the evidence was put .in without objection, and no question is made as to its admissibility. Being in, it was for the jury to pass upon it in connection with all the evidence in determining what the defendant’s agreement was.

Judgment affirmed.