56 Vt. 39 | Vt. | 1884
The opinion of the court was delivered by-
This case was tried at the September Term, 1880, of the County Court, and resulted in a verdict and judgment for the plaintiff. That judgment was reversed and the verdict set aside' by 'this court at the General Term, 1881, and the case remanded to the County Court - for trial. It is immaterial to inquire the reasons that decided this court to remand the case for trial. It might be suggested, that it probably was because having reversed the judgment, and set aside the verdict, the case stood on an issue-closed to the jury, with no verdict for the defendant on which the court could render a judgment in its favor. Hence, a further trial was necessary to procure a verdict on which a final judgment could be rendered, although the decision on the facts then before the court apparently rendered 'a verdict for the defendant on the retrial inevetable. It is sufficient upon this point, to say that this court' decided to remand the case for a new trial, and that decision was the law governing the case as it was before the County Court at the March Term, 1883. It was the duty of the County Court to proceed so far in the trial as enabled it lawfully to determine in favor of one-of the -parties, the issue formed by the pleadings. Without receiving any evidence, after'empanelling a jury to try the issue, upon the record and the statement and offer of the plaintiff’s counsel the court ordered a verdict for the defendant. This presents the question, if the plaintiff should succeed in proving all that was embraced in his offer and claim, would it establish the case in his favor on the points covered by his claim and offer %
This court had decided that the answers of the plaintiff to the questions in the application in regard to the occupancy of the lower story of the building, and of the ownership of the store of goods therein, were," on the- plaintiff’s concession made upon the former trial, false in fact, material to the risk, and rendered the
But this point is not very material, inasmuch as the plaintiff in his second offer, virtually concedes that Carrigan was such occupant and owner, but seeks to avoid the effect of this concession by the third claim, that Butler, the agent of the defendant, who wrote the answers in the application, knew just how the facts were. The third claim fails to allege that the plaintiff fully informed Butler in regard toHhe occnpancy of the store, and ownership of the goods, and that upon such information Butler wrote the answers, using language which he claimed expressed properly and truly who such occupier and owner was, but which in fact failed so to do. This failure does not bring the third claim within the decision of Ring v. The Windsor Co. M. Fire Ins. Co., 51 Vt. 563.
On the second and third claims alone taken in connection with the concession stated in the exceptions, we do not think the County Court erred in directing a verdict for the defendants; but if the first or fourth claim should be established, the concession embodied in the exceptions, made upon the former trial, would be so far nullified, that it was error to direct a verdict for the defendant. The judgment is reversed, and cause remanded for a new trial.