40 Vt. 278 | Vt. | 1867
The opinion of the court was delivered by
The action is for fraudulent representations and concealment on the part of the defendant in the alleged contract. It appears that the contract was in writing, and the written contract was given in evidence.
As to the question of variance between the contract proved and that declared upon, the defendant insists that there is a fatal variance in the amount of the consideration. The declaration alleges that the plaintiff “ paid the defendant a large sum of money, to wit, the sum of three hundred dollars.” This agrees precisely with the amount of the consideration specified in the written contract. There is, therefore, no variance in this respect between the allegation and the written contract. The parol evidence on the part of the plaintiff shows that he was to pay, and did pay, three hundred and fifty dollars. But the exceptions show that at the jury trial, “ the defendant’s counsel insisted that there was a-variance between the written contract and the declaration,” and that the court ruled that there was no substantial variance, — to which ruling the defendant excepted. It does not appear that any question was raised or exception taken in reference to the parol proof of the payment of $350. The exception must be confined to a variance between the declaration and the written contract ; and in relation to the consideration there is no such variance.
It is insisted that the declaration alleges that the plaintiff purchased of the defendant an interest in the wheel or machine, and that the contract proved shows that he did not purchase any interest in, or title to, the wheel or machine, but only the defendant’s interest, to a given extent, in a certain contract between the defendant and Young & Haskins, under which last named contract the defendant was to furnish the machine to Young & Haskins, tfrho were to exhibit it for money, and pay to the plaintiff a certain portion of the gross proceeds, and that in this there is a variance. It is urged that the purchase of an interest in that contract, is not a purchase of an interest in the machine within the meaning of the declaration. Immediately after the general allegation of the purchase of an interest in the wheel, machine or invention, it is alleged that by which contract, (between the plaintiff and the defendant,) • said machine or invention was to be exhibited to the public for money, and of the proceeds the plaintiff to have one-third until he should receive $300, and after-wards one-sixth. The argument, on the part of the plaintiff in answer to this objection, is, that by the contract, as proved, it appears that by the defendant’s contract with Young & Haskins, the defendant is to have one-third of the proceeds ; and that by the contract between the plaintiff and the defendant, as proved, the plaintiff is to have the whole of the share the plaintiff is entitled to from Young & Haskins till the plaintiff shall have received $300., and afterwards one-half that the defendant is entitled to under his contract with Young & Haskins ; so that, under the contract, as proved, the plaintiff gets the same proportion of the proceeds as he does under the contract alleged in the declaration, and that the two are the same iu legal effect. Whether this argument, if well founded in fact, would,
The only remaining exception relied on in argument is to the admission of certain evidence offered by the plaintiff and admitted by the court. It appears that the plaintiff’s testimony tended to show that the defendant represented to the plaintiff, at the time of making the contract, that the balls attached to the wheel were the motive power of the machine, that the balls were so arranged with reference to the rim of the wheel, that the wheel, by the power of the balls, would continue to revolve until the machine was worn out; that it was a valuable invention and machine, and perpetual motion ; and that after the trade was made, and the $350. had beén paid, the defendant showed the plaintiff that the motive power was springs and clock work, concealed from view in the bottom of the machine, of which, till then, the plaintiff was ignorant. The defendant’s evidence tended to show to the contrary, and that he explained all this to the plaintiff before the trade was made. The case further shows that the defendant’s testimony also tended to show that he exhibited
Judgment reversed and new trial granted.