61 Vt. 331 | Vt. | 1889
The opinion of the court was delivered by
The plaintiff contends that there was error in the-judgment of the County Court in allowing item 12 of the plaintiff’s specifications. This item is for the balance of hay which the plaintiff furnished more than his share towards keeping the-stock in the spring of 1881. The parties, March 16, 1881,, entered into a contract, under seal, by which the defendant waste carry on the plaintiff’s farm upon shares for two years from-April 1 following. The contract is specific in reference to the-stock put upon the farm, 'its increase and growth, and income therefrom, and in reference to the use and productions of the-farm during the term. It contains no reference to the hay which-was to be used to keep the stock out that spring. It would be-the duty of each party to furnish one-half of the hay required for that purpose. The defendant was not, by the lease, boundi to take his half from the plaintiff, and no contract was made in. regard thereto when the lease was made. At the close of the-lease the defendant was entitled to one-half the hay on hand,, and was only bound by the lease to feed it out on the farm. Under their rights, as thus determined by the lease, when the-defendant moved to the farm about the 1st of April, 1881, the parties agreed to have the amount of hay which the plaintiff then had determined by two men named, and to have them also determine how much there was then on hand when the lease terminated, and to adjust this item of hay by their determination. It. was so. done. The essence of this agreement was that the defendant agreed to purchase, at the appraisal of the men.
The plaintiff contended that if this were not so, inasmuch as the case was referred, and the defendant had plead assumpsit in set off he could recover this item in set-off on the contract of lease of March 16, 1881, by virtue of R. L. s. 923, although he liad not filed any plea in set-off under that provision, at the time the cause was referred. He makes this claim under the repeated decisions of this court, holding that it is the cause that is referred, and that the court will render such a judgment as the facts found by the referee call for, provided the pleadings in the case could be legally so amended as to authorize the judgment. But this general statement of the doctrine applicable to judgments rendered on a referee’s report has this limitation, that the amendment in the pleadings must be one to the pleadings which exist in fact, or by implication, and does not extend to bringing into the trial a new cause of action by set off or otherwise, and only to amending the declaration in the writ or in the plea in set-off, if that can be lawfully done, so-as to cover the cause found by the referee,, and to amending the pleas filed or treated as filed, so as to furnish any defense to the cause of action that may legally be brought in. issue under the declarations already filed in the cause. In Fulton v. Wiley, 32 Vt. 762, it is held that the amendments spoken of as lawful to be made in a case referred, .on the coming in of the referee’s report, do not include new pleas in set-off. This-contention of the plaintiff is not sustained.
On the views first expressed the judgment of the County Court is affirmed.