| Vt. | Oct 15, 1888
The opinion of the court was delivered by
1. The authorities in this State, Taylor v. Gil-■man, 25 Vt. 411" court="Vt." date_filed="1853-03-15" href="https://app.midpage.ai/document/taylor-v-gilman-6575039?utm_source=webapp" opinion_id="6575039">25 Vt. 411, and Adams v. Smilie, 50 Vt. 1" court="Vt." date_filed="1877-08-15" href="https://app.midpage.ai/document/adams-v-smilie-6580654?utm_source=webapp" opinion_id="6580654">50 Vt. 1, justified the a-uling of the master in admitting the parol testimony offered by ■the defendant to show that at the time of the execution of the written contract, it was agreed by parol that, upon a settlement of their accounts, the balance due the defendant should be applied upon the purchase price of the Riverside property.
2. The orator insists that if parol evidence was properly •admitted the defendant cannot have relief without a cross-bill, and that even under a cross-bill, partnership claims cannot be •set off against the price of the Riverside property. This is a suit for the specific ■ performance of a written contract; the •defendant sets up in his answer a verbal stipulation entered into -at the time of the execution of the contract and as a part of it. The case in respect of the objection named comes clearly within the rule stated by Pomeroy in his work on Eq. Jur., s. 860, viz.: “If the plaintiff alleges-a written agreement, and demands its specific performance, and the defendant sets up in his answer -a verbal provision or stipulation, or variation omitted by mistake, surprise, or fraud and submits to an enforcement of the -contract as thus varied, and clearly proves by parol evidence that the written contract modified or varied in the manner ^alleged by him, constitutes the original and true agreement made by the parties, the court may not only reject the plaintiff’s ■version, but may adopt that of the defendant, and may decree a •specific performance of the agreement with the parol variation, •upon the mere allegations of the answer, without requiring a cross-bill.” It is nothing but the enforcement of a single con
3. Several questions arise upon the master’s report in reference to certain charges of the defendant for personal services in-, caring for the property owned by him and the orator jointly,, and closing up their partnership business. The defendant charged' five hundred dollars for his services, in settling up the partnership business, rendered after the dissolution. The master reports-that there was not sufficient evidence as to the amount of labor-performed by him in excess of the orator’s to enable him to-make any finding on thi3 item. If he performed no more labor than the orator did in the same matter he is not entitled to any allowance. He fails to show that fact and the item was properly disallowed. .
4. As to the items of five hundred dollars for services in building Riverside, two hundred dollars for the care of it after its-construction and supervising alterations in it, and one hundred dollars for services in collecting the Brigham notes, it is necessary to consider the relations of the parties in respect to this property.. It was not strictly partnership- property, in respect to which,, their partnership had been dissolved. Their co-partnership, embraced simply the practice of the law and ceased before Riveivide was built, and the Brigham notes were purchased as an. investment, whether with partnership funds or not does not appear; but neither the ownership of the Riverside, nor the-Brigham notes were within the scope of the partnership business p they were joint owners; tenants in common of the property “ and their right to charge each other for their personal services-in the care of their joint property must be governed by the well known rules applicable in such cases. Freeman on Co tenancy, s. 260, states the rule as follows : “ Compensation for his services-in managing or taking care of the property is never awarded to a co-tenant, except as a result of a direct agreement to that effect; or unless, from all the circumstances of the case, the court is satisfied of the existence of a mutual understanding between the parties that the services rendered by one should be paid for by the others. In this respect 'the law of co-tenancy is.
5. The orator never paid the item of fifty dollars charged by him for expenses, on the occasion of an interview with Smith Ely in the city of New York. The master properly disallowed it.
No other questions are insisted upon by the parties. The •orator therefore is entitled to a decree that'upon payment by the • defendant of the sum of fifteen hundred and fifty-nine dollars • and ninety-seven cents, with interest since the second Tuesday in September, 1886, within such time as may be fixed by the -chancellor, the orator shall convey to the defendant, free from •encumbrance, an undivided half of the Riverside property, described in the bill and in default of such payment, the orator to have a decree according to the prayer of the bill. .
Decree reversed and cause remanded with mandate.