92 Vt. 92 | Vt. | 1917
This is an action of tort based on fraudulent representations in the sale of real estate. The case was docketed in Addison County court on October 12, 1915, and was tried by jury at the June Term, 1916. Before and at the time of the trial, the defendant was one of the assistant judges of that court. During the impaneling of the jury, and after counsel for the plaintiffs had examined some of the jurors on the voir dire, and had exercised five challenges to the polls, the plaintiffs challenged the array, on the ground that the defendant was present and assisted in the selection of the array of jurymen for the term, and in support of this challenge offered to show that the jurors were selected by drawing the names in the presence of the defendant, either by the clerk of court or the sheriff, they both being present, looking at the names and discussing them before it was decided
The statute provides particularly how the names of grand and petit jurors returned by the clerks of the several towns of the county to the county clerk, shall be arranged and kept by the latter in boxes, and that, within the time specified, the sheriff or his deputy shall, “at the office and in the presence of the clerk of the county, draw out of the ‘boxes’ the number of names required to be summoned from the towns respectively; and the county clerk shall issue a venire commanding such officer to summon the persons so drawn.” Except that if a person drawn is absent or sick so that probably he can not attend the court, or if he has within two years been drawn as a juror from a town of more than two hundred inhabitants, his name shall be returned to the box and another drawn and summoned. P. S. 1468-1470.
It is said in Coke upon Littleton (156. a.), that “if any one or more of the jurie be returned at the domination of the partie, plaintife or defendant, the whole array shall be quashed. So it is if the sherife returne any one, that he be more favorable to the one than the other, all the array shall be quashed.” The same grounds of challenge to the array are stated in Bacon’s Abridgment, Vol. 5, Juries, E. 1; in Blackstone, Book III, 359; and in Stephen’s Com. (8th Ed.) Vol. 3, 540. It is urged that the challenge was properly dismissed for that (1) it was not in writing; (2) no affidavits in support of it were submitted; (3) the’ plaintiffs did not accept the offer of the court to hear the
Concerning the third ground stated, it is enough to say that obviously the court below did not so treat the matter in finally disposing of the challenge.
Under our practice such challenges are not required to be in writing. The grounds of challenge should be sufficiently full and definite reasonably to inform the trial court and the adverse party of the precise departure from the legal requirements relied upon. Very likely it is the better way to reduce the challenge to writing; but if it be stated with the required fullness and definiteness, — concerning which no question is raised in this case, — and taken down by the stenographer of the court, as it fairly appears, to have been done in this instance, it is sufficient. Ullman v. State, 124 Wis. 602, 103 N. W. 6. Nor was it essential to the validity of the challenge that it be accompanied by affidavits proving the alleged illegal acts upon which it is based. It devolved upon the challenger to make such proof, but this could be done by oral evidence or by affidavits. Borrelli v. People, 164 Ill. 549, 45 N. E. 1024. The record shows that on the first day of the term, and before this case was called for trial, one of the plaintiffs’ attorneys was informed and believed that the defendant was present and assisted the sheriff and the clerk of the court, in the selection of the jurors drawn to hear causes at that term; and that notwithstanding this, the challenges to the array were not made until after the plaintiffs had exercised several challenges to the polls. The rule seems to be firmly established that after a party has taken a challenge to the poll, he can not as a matter of right challenge the array. Co. Litt. 158. a.; Bac. Abr. Juries, E.
The case of Mann v. Fairlee, 44 Vt. 672, is relied upon as an authority to the contrary. But it is not so. There one of the jurors who sat in the case was, by mistake of the sheriff, summoned to serve as a juror at the term of court, the sheriff supposing he was the man of that name drawn, when in fact he was a different person from the same town and having the same name, except he had no middle name, as did the one drawn. There was no collusion or fraud on the part of any one, and neither party to the ease was aware of the mistake till after the verdict was rendered and the jurors discharged from service in the cause.
Thus it appears that the court considered the challenge and •disposed of it on specified grounds other than that it was not seasonably made, or that the right to exercise such challenge had been waived.
But whether the statute be directory or otherwise makes no difference with the character and the effect of the acts (if established) of the sheriff in allowing the defendant to participate in the manner offered to be shown, in arraying the jurors. The plaintiffs were entitled to have their case tried by an impartial jury composed of men selected as contemplated by law, without any direction or influence of the defendant. It requires no argument to convince any person having a proper respect for law, and the due administration of justice, that a party to an action to be tried at a term of court, is disqualified from participating
The plaintiffs seek to recover damages to the amount of the value of a tract of land situated between the top of the mountain in the town of Huntington and Avery’s Gore, on the west, and the town line of Fayston, on the east. Their evidence tended to show that the defendant represented that he was selling this tract as part of lands conveyed to them by his warranty deed, dated December 16, 1912, and marked “plaintiffs’ exhibit 10”; that the plaintiffs fully relied upon these representations as to the ownership and value of said tract in the purchase; and that they afterwards bargained to sell this tract with other lands covered by the deed mentioned, upon the said representations of the defendant. The plaintiffs’ evidence further tended to show that said tract of land, as they ascertained after they had so bargained, did in fact belong to the Champlain Kealty Company, whereby they were obliged to discount the sale price of the premises covered by their bargain of sale, to the extent of fourteen hundred dollars, in order to prevent a rescission of the entire trade.
The defendant claimed that he did not represent to the plaintiffs that he owned the land in dispute; that he made no representations with reference to any particular tract of land or boundaries thereof; and that the plaintiffs did not rely upon anything he may have said to them in reference to the location of the land or the boundaries, but relied upon what their agent, Mr. Quinlan, reported after he had examined the property and reported his findings.
The plaintiffs’ evidence tended to show that the defendant told one of the plaintiffs, when negotiations were going on between them for the sale by the former of his lands to the latter, that Benjamin Trombley was acquainted with the land, knew approximately where the boundaries were, and would show the plaintiffs the property and the boundaries, and that defendant would arrange to have Trombley go onto the property for this
The plaintiffs showed that after their purchase of the defendant, they sold the same land to Doe Brothers and Stevens, and that in making the sale they sent the same man Trombley on to the land to point it out to the purchasers, and that he told them where it lay just the same as he told Quinlan; that at that time indications were made by Trombley to Mr. Doe and Mr. Stevens as to where the eastern boundary of the tract they were about to purchase was. Stevens, called as a witness by the
Fred Doe, one of the Doe Brothers, was called as a "witness by the plaintiffs, and testified to Trombley’s showing to himself and Stevens the property on the occasion last mentioned. Plaintiffs’ counsel asked the witness what, if anything, Trombley told him "was the east boundary of the Planks property. Objection being made, counsel said they offered the evidence for the purpose, in short, of showing what Trombley, when showing the property to Quinlan on the occasion mentioned above, in fact told Quinlan as to where the east boundary of defendant’s land "was, Trombley having testified that he subsequently told Doe Brothers and Stevens the same that he told Quinlan. This offer "was excluded and exception saved. In this ruling there was no error. The statement of an agent made in the performance of the duties of his agency, can not be proved by his subsequent statement upon the same subject matter when acting as the agent of another principal. For such purpose, the latter statement would be hearsay, and none the less so by the fact that the person who acted as such agent testified that it was the same as his first statement.
The defendant, when called to the witness stand by the plaintiffs, testified to telling the plaintiffs that his land run to the Fayston fine and to the pulp company fine. On being examined by his own counsel, he was asked: Q. "When you spoke of the land running to the Fayston line and to the pulp company,
Defendant called as a witness one George E. Bartlett, and, in the course of his examination, asked him whether or not during the past five or six years there had been any claim made with respect to the division line claimed by the Champlain Realty Company, and himself as the owner of lots 14, 15, 16, and 17. Plaintiffs objected to the question, but stated no ground of their objection; and on its admission, saved an exception. Under the claims made by the defendant as to the force of the evidence given by the witness in answer, we can not say it was wholly irrelevant and immaterial. The exception is therefore unavailing. Douglass & Varnum v. Village of Morrisville, 89 Vt. 393, 95 Atl. 810.
Exception XI to the charge requires an examination of evidence to determine whether there was such evidence as the exception states as the basis for the charge claimed. But the plaintiffs do not, in their brief, make specific reference to such parts of the evidence as they deem material, giving the page, etc., as required by Rule 6, paragraph 5. The exception is therefore not considered.
The 12th exception is to the court’s failure to charge according to the plaintiffs’ fourth request. This request is simply a. statement of an abstract principle of law, without reference to the matter of the context, and without any thing to indicate how the jury should apply it to the evidence in the case. The failure so to charge was not error. Lang v. Clark, 85 Vt. 222, 81 Atl. 625.
The plaintiffs excepted to the failure of the court to give the substance of their sixth request, reading as follows: “The jury are instructed that it was the privilege and right of the plaintiffs to rely upon the representations made by the defendant as to the location and boundaries of his land, including his eastern boundary which is here in dispute, without searching the
The bill of exceptions shows that the only questions involved in this case relate to a tract of land between the top of the mountain in Huntington and in Avery’s Gore on the west, and the town line of Fayston on the east, and that the alleged false representations relate to the ownership and the eastern boundary of this tract of land. In area this tract is small as compared with that of all the lands within the sale and conveyance by the defendant to the plaintiffs, according to the evidence of either party. Consequently the request includes the right and privilege of the plaintiffs to rely upon the representations made by defendant touching the location and boundaries of lands not involved in this ease, and, even though sound as a general proposition of law, it was inapplicable and rightly refused. Winn v. Rutland, 52 Vt. 481; Smith v. Central Vt. Ry. Co., 80 Vt. 208, 67 Atl. 535 ; Needham v. Boston & Maine R. R., 82 Vt. 518, 74 Atl. 226.
Exception was taken to the failure of the court to comply with the plaintiffs’ second request, reading as follows: “If the defendant, in order to induce the sale, represented that he had personal knowledge as to the location of his eastern boundary in the town of Huntington and in Avery’s Gore, being at the same time aware that he had not such knowledge, his representation was fraudulent, although he did not state such boundary different than he believed it. It was an imposition and fraud for him to pass off his belief as knowledge, and if the plaintiffs relied upon his representation, they are- entitled to recover for their damages arising therefrom.” This request entirely omits the element of falsity in the representations made, without which being affirmatively shown there can be no recovery in this case. As before seen, the evidence was conflicting as to what the representations, in fact were, and their falsity depended upon whether the jury should find them to have been according to the tendency of the plaintiffs’ evidence. Counsel for plaintiffs rely upon the case of Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313, as an authority supporting their request. But in that ease, “It was conceded,” says the court, “that the quantity of land was represented incorrectly.” Hence the element here lacking in the request, was there one of the conditions of the ease. So the holding in that case does not go to the extent of saying that the element of falsity
The result being that a reversal must be had on other grounds, the exceptions to the court’s refusal to continue the case, and to its overruling the motion to set aside the verdict, are not considered.
Judgment reversed and cause remanded.