83 Vt. 167 | Vt. | 1910
This action is to recover damages for deceit and false warranty in the sale of a farm. The declaration originally contained four counts: The first and second in case for deceit, and the third and fourth in assumpsit for false warranty. The title to the farm in question stood in the name of Eva C. Shepardson, the defendant wife. The deed of conveyance, executed by both defendants, warranty in form, contained a reservation as follows: “Ever reserving all the standing timber
During the trial and before the plaintiffs had rested in putting in their opening evidence, plaintiffs’ counsel gave notice to counsel for defendants and to the court, that they claimed to recover only on the ground of deceit and did not claim to recover for breach of warranty, and asked permission to strike out the fourth count, which was granted.
Thereafter the trial proceeded on both sides, so far as was made known to the court, on the theory that there was no other count in the declaration for breach of warranty. The jury were not informed that the third count still remaining in the declaration could not be made the basis of recovery, except that the court submitted the case solely upon the ground of deceit, as alleged in the first two counts. A general verdict was rendered for the plaintiffs. After verdict and before judgment the defendants moved in arrest of judgment and for judgment for defendants notwithstanding the verdict, on the ground of misjoinder. Whereupon the plaintiffs, on motion, were permitted to strike out the third count, to which defendants excepted. The motion in arrest was then overruled pro forma, judgment rendered on the verdict, and a certified execution granted, to each of which an exception was saved. It is not contended here that judgment should have been rendered for the defendants non obstante veredicto, so the motion will be considered only with respect to arresting the judgment.
No question is made but that the third count is technically good in itself, and that so long as it remained a part of the declaration there was a misjoinder of counts. The position of
The verdict in the case at bar was rendered when the third count was .part of the declaration, and it was allowed to stand without any amendment confining it to the first two counts. There being evidence which applied to all three counts, thus rendering it impossible to say on which count or counts the damages were assessed, the judgment sought to be arrested is based upon all counts and it could not be made to stand upon two of them by striking out the third. The motion in arrest should have been granted, unless under the practice which now generally obtains in this State the plaintiffs were awarded and accepted a venire de novo on terms imposed. Posnett v. Marble, 62 Vt. 481, 20 Atl. 813, 11 L. R. A. 162, 22 Am. St. Rep. 126; Baker v. Sherman, 73 Vt. 26, 50 Atl. 633; Dean v. Cass, 73 Vt. 314, 50 Atl. 1085.
Judgment reversed and new trial ordered on terms that plaintiffs pay defendants’ costs up to the time of filing a neut