Cleavland v. Burton

11 Vt. 138 | Vt. | 1839

The nature of the testimony may be understood from the opinion of the court, which was delivered by

Williams, Chancellor.

The court do not find the evidence in this case sufficient to establish the allegations in the bill.or to disprove the answers, in any material part. The evidénce of the admissions of parties, impressions derived from casual conversations, conversations had in a store or in any place where numbers aie collected, and a law suit is the subject about which they are talking, words spoken by a party, at such time, or supposed to be spoken, are very unsatisfactory to establish a point litigated. The contract between the orator and the Burtons was in writing; the terms of it, and the reason why it was made in the manner it was, are fully proved, and the Burtons have been uniform in their declarations that they should adhere to the bond, and would not vary from it in any particular. Before we set aside this contract and declare that it was, or was intended to be different from what it appears, the evidence should be very clear, satisfactory and conclusive.

■ But, even if it were in proof not only that Brunson was the agent of the orator, but that such agency was known to the Burtons — which, however, is directly denied in the answers . —and that the bond was taken for his benefit alone, we can see 510 §'roun¿ fQi' any decree in favor of the orator. It is not - pretended that the contract, as written, was different yrom w]iaj- was intended. There is no evidence that any advantage was taken of the situation of the orator. Although there is, as is usual, a different estimate put on the value of the land by the several witnesses, yet we do not discover that there is any great difference between the value of the land and the sum agreed to be given for it.

O- Stevens and A. G. Whittemore, for orator. Smith Of Aldis and S. S. Brown, for defendants.

The evidence is concurring that the orator and the Bur-tons both intended a sale and purchase, and neither of them contemplated a mortgage. Instead of preserving any debt or evidence of a debt against the orator, the Burtons discharged and cancelled whatever demands they had against him. They retained none of the rights of a mortgagee, and if the premises had been of less value, or the buildings had been destroyed, the loss would have been wholly theirs.

The defendants always insisted that they would not vary from their bond, and the orator, if it was his or for his benefit, should have complied with the conditions. Having wholly failed to perform the conditions, on his part, no reason or excuse having been shown why he failed, we can discover no grounds to decree in his favor, even in this view of the case. The bill must, 'therefore, be dismissed, with costs.

Royce, Chancellor, was prevented by ill heath from sitting in this case.