93 Vt. 378 | Vt. | 1919
This action of common-law ejectment is to recover the possession of real estate situated in Dorset, known as the Hodge place. It is brought against the defendant personally and as administratrix of the estate of her mother, Elizabeth Chapman, deceased.
At the close of the evidence, plaintiff moved that a verdict be directed in her favor; but the motion failed to point out the precise ground on which it was based, and so the overruling of it was not error. No authorities need be cited.
Error is claimed to have been committed by the court in admitting evidence on the question of repairs made on the buildings by defendant’s mother, a question which defendant undertook to raise in defence of the action. But this issue was, by the court, wholly withdrawn from the consideration of the jury. So if the evidence were erroneously received, the plaintiff was not harmed by it. Armstrong v. Noble, 55 Vt. 428.
The defendant was the first witness called by the plaintiff to testify in her opening case. She testified in chief to living at home with her mother on the place in question, owned by the
The plaintiff’s deposition, being later offered in her own behalf, question 14 and all other questions dealing with the contract between the plaintiff and Mrs. Chapman, were objected to on the ground that one party to the contract being dead the survivor was incompetent to testify. By question 14 deponent was asked whether she made an arrangement with Mrs. Chapman, in her lifetime, whereby the latter was to enter and occupy the premises in question. The answer was that she did, either by herself or by (her agent) Miss Edwards. By question 24, whether the arrangement was made with Mrs. Chapman alone, or with her and her two daughters. The answer was that it was with Mrs. Chapman only, never with any one else. This testimony was offered by the plaintiff for the purpose of contradicting the defendant on that point, its admissibility being claimed under the clause of the statute (G. L. 1891, 1892), permitting a surviving party to a contract “in issue and on trial’’ to testify
As the evidence stood, not including testimony given by the plaintiff, it was for the jury to say who the real parties to the contract were. If the contract was made with Mrs. Chapman alone, as the party on one side, the surviving party was not competent to testify, it not appearing that she came within the special exceptions mentioned in the disqualifying statute. But if the party to that side of the contract consisted of Mrs. Chapman and her two daughters, then neither party to the contract “in issue and on trial” was dead, within the meaning of the statute, and the death of Mrs. Chapman did not affect the competency of the plaintiff. Read v. Sturtevant, 40 Vt. 521; Paddock v. Potter, 67 Vt. 360, 31 Atl. 784; Pope v. Hogan, 92 Vt. 250, 102 Atl. 937. It follows that the offer of the plaintiff to
The plaintiff excepted to the failure of the court to comply with her third request. Defendant says the charge given shows a substantial compliance, and so it does to an extent not warranting a reversal based on a shortage therein. Doubtless the instructions in this respect might have been less involved and plainer, yet, short of legal error, there is no cause for reversal of judgment. Durgin v. Danville, 47 Vt. 95.
Exception was taken to the failure to charge what constitutes a tenant at will under the facts of the case; also to the charge in allowing the jury to find that the defendant was a tenant from year to year at the time of the bringing of this suit. As to the first, it is said that the court did not instruct the jury concerning the law in case the defendant went into and remained in possession for the purpose of earing for the plaintiff’s fowls, provided the occupancy was incident to such purpose. But the record shows that the court attempted to do just this. At most, it can be justly claimed only that the instructions in this respect should have been fuller and with more specific reference to the facts in evidence, a defect or shortage, if it be a defect or shortage, which cannot be reached by an exception pointing to an omission to charge on the subject. Magoon v. Before, 73 Vt. 231, 50 Atl. 1070. As to the second, the defendant’s testimony was such that, if believed in its essential particulars touching the contract and the operations under it, the jury might properly find her to be a tenant from year to year when this action was commenced.
Judgment reversed, and cause remanded.