53 Vt. 585 | Vt. | 1880
The opinion of the court was delivered by
This action is assumpsit in the common counts. The report finds that the plaintiff contracted with the defendant for a dark blue Rutland marble headstone, three feet eight inches
I. The defendant insists that the action should have been special assumpsit, and that no recovery can be had upon the general counts. If the case had not been referred to the referee this point, probably, would have been well taken. Curtis v. Smith, 48 Vt. 116; Carpenter v. Brainard, 37 Vt. 147. But all questions as to form or variance are waived by the reference. It is the cause of action which is referred, and recovery may be had if the party has a good cause for action, and by any amendment in the mere form of pleading the party would be entitled to recover. By the reference in this case, the defendant has waived this objection to the form of the declaration. Waterman v. Conn. & Pass. Rivers R. R. Co., 30 Vt. 610; Laport v. Bacon, 48 Vt. 176; Rob. Dig. p. 600, s. 5-6. The case does not show that this question was raised or adjudicated in the County Court; nor is there any exception to the report on this ground, or intimation in the report that the defendant was not content to try the case as it was tried, on its merits. For a double reason this question has been waived by the defendant.
II. The defendant also claims that the stone was defective in the material of which it is made, and not answerable to the contract. The referee finds that “ there was a whitish line or streak, about a sixteenth of an -inch wide, commencing about one foot from the base and running, diagonally, downward across the stone and through, in striking contrast with the general color and appearance of the stone; that the stone is solid, and apparently
It might well be questioned, we think, whether the sentiment and feeling, touching monuments for the dead, very neatly elaborated by Aldis, J., in this case, might not more fitly be considered in discussing the facts rather than the law of the case. But that case differs materially from the case at bar. It was not made of pure “ white marble,” but had been stained and disfigured, (by accident it is true), but by the act or sufferance of the contracting party, and was not at the time of delivery what the party contracted for. In this case if there was any defect, it was in the natural color of the stone; and the court cannot say as a matter of law that this headstone was not made of “ blue Rutland marble,” such as is bought and sold in the market under that appellation and name.
Judgment is affirmed.