69 Vt. 360 | Vt. | 1897
It appears from the referee’s report that Hiram
The finding that Adeline intended that Hiram should be released from the payment of interest in the event of her death, and that there was an understanding between them, that, if she recovered and needed the income which the notes would have given her had they not been surrendered, Hiram should see that she had it during the remainder of her life, must be construed together; and, when so considered, it is
Whether Adeline was in need of the income the notes would have given her if they had not been surrendered, was a question of fact for the referee; and the defendant is concluded by the finding. The evidence is not referred to, and there is nothing in the report from which we can say that the finding was upon insufficient evidence. She may have needed more money than she expended, and we cannot say that she did not need the money deposited in the bank and the income the notes would have yielded.
The defendant insists that the interest cannot be recovered under the common money counts in assumpsit. The cause having been referred and tried by a referee, judgment must be rendered according to the facts reported, if the county court had power to allow an amendment to the declaration that would include the item of interest, if such amendment was necessary. Dennis v. Stoughton, 55 Vt. 371; Granite
Judgment affirmed, and cause certified to the probate court.