Manley v. Johnson, 85 Vt. 262

85 Vt. 262 | Vt. | 1911

Munson, J.

The declaration charges that the defendant induced the plaintiff to give him credit on an exchange of automobiles, by falsely and fraudulently representing that certain real estate owned by him was free from incumbrance, when said real estate was in fact mortgaged for its full value as the defendant well knew.

It appears that while the case was pending before the jury, and as the jury was about to be called, the empaneling of the jury was deferred at the request of the defendant, and that negotiations for settlement were thereupon had and the terms of settlement agreed upon, and that the case was entered with the court for judgment as per stipulation, with the understanding that the agreement should be reduced to writing and be signed by the parties. Later, the defendant refused to sign the stipulation. The agreement was that the defendant should pay three hundred dollars before the fifteenth of December, or there should be a judgment for the plaintiff in that amount.

At a sitting of the court in January, upon the request of defendant’s counsel, the matter was allowed to stand over until the reassembling of the court in February, and judgment was then entered for the plaintiff for three hundred dollars damages, and costs. The defendant excepted to the judgment on the ground that he had not had his day in court, and that no such proceedings had been had as would entitle the plaintiff to a judgment.

'It is argued for the defendant that the understanding that the agreement should be put in writing and signed was a part of the oral agreement, and that the failure to sign the stipulation left the agreement incomplete and of no effect. We think, however, that this understanding must be treated as supplemental to the agreement. The agreement itself was at once carried into effect by counsel by having the docket entry made. It is argued further that there was evidently some disagreement as to what should be included in the stipulation, and that a rule of court provides that when parties differ as to an oral agreement the court will disregard it. But there was no disagreement for the court to consider when it made the entry which provided for the judgment afterwards rendered. It is said that the agreement was without consideration; that the defendant had a right to withdraw from it if it could be done without prejudice to the plaintiff; that his refusal to sign the stipulation was a complete withdrawal; and that the plaintiff’s rights could have been saved by a continuance. This argument entirely ignores the main feature of the transaction. The plaintiff was entitled to a trial by jury at that time, and he waived this right in consideration of the defendant’s consent to a docket entry which entitled him to a judgment in accordance with an agreement which it was understood should be evidenced by a writing. We think the defendant’s subsequent refusal to sign the writing did not deprive the court of its power to enter up a judgment in accordance with the agreement.

It does not appear that the court was asked to strike off or disregard the first entry on any claim of mistake, fraud or undue advantage. It does not appear that any question was raised as to the manner in which the agreement was ascertained, nor as to the correctness of the finding. The only claim presented by the exception taken to the judgment was that no proceedings had been had that entitled the plaintiff to a judgment. In fact nothing appears, in addition to the matters above stated, until we come to the report of the proceedings on the motion for a certified execution. Defendant’s only claim touching the agreement was that the amount agreed upon was to cover certain contract obligations; and this claim was made in the hearing on the motion for a certificate, had after the judgment was entered, and was advanced solely in opposition to the motion.

In the hearing on the motion for a certified execution, the court excluded an offer of defendant to show that certain matters of contract were taken into consideration in determining the amount for which judgment should be entered. The evidence was offered as limiting the amount for which a certified execution ■could be granted. The ruling was correct. The court could not properly treat the agreed amount for which judgment had been entered as anything other than damages for the deceit alleged.

Defendant proposed to inquire of the plaintiff whether he did not understand that all real estate mortgages were recorded in the town clerk’s office; claiming that it was the duty of the plaintiff to examine the records and not rely on what the defendant told him. The question was properly excluded. The plaintiff was entitled to rely on the defendant’s representations concerning his ownership of a specific piece of property. Childs v. Merrill, 63 Vt. 463, 22 Atl. 626, 14 L. R. A. 264.

At the close of the evidence received on this hearing defendant moved that the writ be dismissed, .because issued and served as a capias on a wrong growing out of contractual relations. The court overruled the motion, and granted a certified execution; and defendant excepted to the granting of the certificate. '

The case is unmistakably an action for deceit. The questions argued as to the plaintiff’s right to this remedy were disposed of by agreeing to the judgment. It is not claimed but that the facts which the evidence tended to establish were sufficient to justify the granting of a certificate.’ But it is said there was no agreement that the plaintiff should have a certified execution. Plaintiff’s right to one did not depend on there being an express agreement. A judgment taken by consent carries with it all the rights incident to a judgment rendered on a verdict. See Grand Isle v. Milton, 68 Vt. 234, 35 Atl. 71; Harris v. Harris' Est, 82 Vt. 199, 215, 72 Atl. 912.

Judgment affirmed„