16 Vt. 687 | Vt. | 1844
The opinion of the court was delivered by
In this case exceptions were taken by both parties at the trial. I shall begin with the question reserved by the plaintiff, as to the admissibility of evidence to prove the value of the property; because this involves a construction of the agreement of Nov. 19, 1839, and the views entertained by the court upon this part of the case will be found to dispose of several questions which were saved by the defendant. In that agreement there was an express and positive covenant on the part of the plaintiff, ( which it seems he duly performed,) to discontinue his action against Ingraham,— and a covenant equally express and positive on the part of the defendant, to pay the value of the property attached, as well as to make certain other payments for costs, trouble and expense. But it is urged that those covenants were dependent upon the appraisal
The view thus taken of the agreement furnishes an answer to the defendant’s motion to dismiss, founded on the alleged want of original jurisdiction in the county court. It farther shows that neither the adjournment- by the appraisers to a day beyond the time limited by the articles of agreement, nor the want of a seal to the revocation interposed by the defendant, should be permitted to prejudice the plaintiff’s right. The adjournment was the act of the appraisers done at the defendant’s "request, whilst the revocation was his sole act. On his part they would seem to have' been alike intended to defeat the appraisal, — a purpose which was finally effected. But as
An objection was taken to the agreement, when offered in evidence, on the ground of variance from the declaration in reference to the consideration of the defendant’s covenant to make the several payments. The plaintiff’s agreement concerning the appraisal was claimed to have made a part of the consideration of that covenant. It is certain, however, that there is no literal variance, since the declaration has, in this particular, adopted the very words of the agreement. The plaintiff having therein bound himself to discontinue his action, the defendant, “in consideration thereof, covenants” &c. Neither do we think there is any intrinsic or real variance, inasmuch as the succeeding provision, for having the property appraised, was doubtless understood as relating merely to the performance of the covenant, and not as forming any part of its consideration. It may be added that the defendant is estopped by his deed from alleging any different consideration from the one therein stated.
A single point remains to be considered. The question arising under the defendant’s fourth plea was, whether the written assignment from George and Allen Marshall to the plaintiff conveyed, or purported to convey, the same property for which the plaintiff brought his action against Ingraham. And the slightest inspection of that instrument is sufficient to show that the question was rightly determined in the negative. . That assignment was only of a certain book of accounts, and the sums of money due thereon. It refers, indeed, to a transfer of the other property to the plaintiff, as having been made before the attachment by Ingraham. It also professes to be part of the same transaction by which that transfer was made. But the writing explains this latter declaration simply to mean, that both the transfer and assignment were made in execution of the same pre-existing contract, or upon the same consideration. It is impossible so to construe the assignment, as to make it operate to pass any interest in the property before transferred, or to render the validity of the previous transfer in any measure dependent upon it.
The conclusion is, that the rejection .of evidence to show the value of the property furnishes the only sufficient reason for reversing the judgment below. On that ground the judgment is reversed.