79 Vt. 416 | Vt. | 1907
The prosecutrix was entitled to a distributive share in the estate of her father, Lemuel A. Giles. Her brother, William H. Giles, now deceased, was the administrator. Defendant was a surety on the administrator’s bond. The suit is upon this bond, and the breach declared upon is the administrator’s failure to pAy the plaintiff her share. The plea is that the plaintiff by her deed duly signed, sealed and delivered, for a valuable consideration, released and discharged the defendant from this liability. The replication is that, the release was obtained by the fraud of the defendant and his agent, and without any valuable consideration therefor, “that is to say” that the plaintiff was an unlearned and ignorant woman, unacquainted with legal documents, terms and phrases, and that she was induced to sign the release, when ignorant of the contents of the paper, by
The release was procured by defendant’s agent. It appears that the paper was read to the plaintiff, but without any explanation of its purport, that “no actual misrepresentation was made,” but that the plaintiff is a person of little education and limited intelligence, and that she signed the paper believing that it was something in the nature of a receipt, covering a payment to be afterwards made. It is found that “to this extent” there was passive fraud. There is no finding that the defendant or his agent understood, or ought to have understood, that the plaintiff was lacking in intelligence or ignorant of the purport of the document. The facts reported come short of a finding of fraud.
There is a further finding that no consideration was ever paid to the plaintiff. This does not fully negative a consideration, for there may have been a consideration other than any kind of payment to the plaintiff. But conceding that the finding should receive a broader construction, the pleadings must be considered in determining, the effect to be given it. It is clear that the defendant’s allegation of a valuable consideration is immaterial, and that the plaintiff’s allegation to the contrary goes only to support the charge of fraud. So the fraudulent procurement of the release is the only issue presented by the pleadings. The defendant cannot be said to have consented to an enlargement of the issue by failing to object and except to the evidence received, for evidence that there was no consideration was admissible on the question of fraud. So the finding that there was no consideration is outside the pleadings, and the defendant has not lost his right to object to it. A case is to be tried and determined upon the issue joined
Judgment reversed and judgment for defendant.