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67 Vt. 347

Cutler & Burnham v. Dix

Supreme Court of Vermont

Decided October 15, 1894

Supreme Court of Vermont · decided 1894-10-15

Assumpsit. Plea, the general issue. Trial by jury at the March term, 1894, Washington County, Tyler, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The construction of this written contract was for the court, and it was error to submit to the jury whether the conceded change in dimensions was ■ a departure from its terms. Denison's Ex. v. Wertz, 7 Sar. & R. 371; Dwight v. Germania Ins.

Cited by 1 later decisions — most recently February 1917

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1894-10-15

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ROSS, C. J.,

¶1dissents.

¶2I concur in the result, but not in the grounds oí the decision. I think that all of the terms of the contract are to be considered, in ascertaining the intention of the parties. On the face of the contract there is discoverable no contradiction nor ambiguity between the Dickenson design and the measurements. But, on applying this design and the •measurements to a monument it is found they do not agree, and a doubt or ambiguity arises in regard to which the parties intended should control. I think parol testimony was admissible to remove this latent ambiguity. But the court erroneously rejected testimony to show what the several measurements of the Dickenson monument were, which had been made in accordance with the Dickenson design. I do not think that the measurements are to control, and that the design with its proper proportions is to be rejected. But when a substantial variance between the design and the measurements is shown, then the ambiguity may be cleared up by parol testimony, that the intention of the parties may prevail.

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