Volume 89 — Vermont Reports

<p>Municipal Corporations — Police Officers — Removal—Action for Salary — Necessity of First Establishing Title to Office — De Jure Officer — Quality of Office — Necessity of Due Process of Law in Removal.</p> <p>No. 261, Acts 1906, is the amended charter of the city of Burlington, and §181 provides that application for positions on the police force shall be filed with the police commissioners who shall certify to the mayor the names of those qualified. Section 182 authorizes the mayor, as the needs of the city- require, to appoint a sufficient number from those whose names are so certified, and that, if at any time there shall not be a sufficient number of names certified, he “may appoint any person.” Section 183 requires that regular policemen shall be retained so long as they are competent and efficient. Section 184 specifies causes and manner of removal. Section 179 requires the board, with the approval of the mayor, to fix the qualifications of members of-the police force, and a rule of the commissioners made under this section provided that the applicant should not be less than 25 nor more than 50 years of age. Held, that where the commissioners failed to certify the names of a sufficient number of applicants, and the mayor, under the last clause of §182, appointed plaintiff, he was not subject to the rule made by the commissioners under §179, and so could not be removed merely because he was 53 years of age when appointed.</p> <p>A de jure municipal officer, whose services and prescribed salary are refused on the ground that he is not entitled to hold the office, need establish his title thereto before he can maintain a suit for such salary only where there is another in actual possession of the office.</p> <p>A public office with prescribed emoluments is a thing of value, of which the de jure officer cannot be deprived without due process of law.</p>

General Assumpsit. Pleas, the general issue and payment. Trial by jury at the April Term, 1914, Windham County. Stanton, J., presiding. Verdict and judgment for the plaintiff. ' The defendant excepted. The deposition in question was filed in the Windham County Clerk’s office on December 31, 1910. 'The opinion states the case.

Appeal in Chancery, Addison County. Heard at Cham-' bers, September 30, 1909, Butler, Chancellor, on the pleadings and the report of a special master. Decree for the orators. The defendants appealed. The opinion states the case. The failure of the special master to determine whether or not there had been an invasion of the orators’ right as to the use of the water is immaterial. 6 Pom. Eq.

Petition for a writ of certiorari, brought to the Supreme Court for Chittenden County at its November Term, 1914, and then heard on the pleadings. The opinion states the ease.

Action under P. S. 644-646, as amended by No. 52, Acts 1910, for the collection of delinquent taxes. Plea, the general issue with notice. Trial by jury at the March Term, 1913, Washington County, Fish, J., presiding. Verdict and judgment for the plaintiff. The -defendant' excepted. The opinion fully states the ease.

<p>Trover — Evidence—Identity—Opinion Evidence — Presumptions — Scope of Rebuttal — New Trial — Newly Discovered Evidence — Affidavit of Counsel — Necessity—Diligence.</p> <p>In trover for a heifer, where the question was one of identity, and a veterinary testified for plaintiff that the veterinary tested the heifer in April but did not tag her until December, his further testimony that the tagging so long after the testing was an extraordinary incident was not an attempt’to prove that witness tagged the heifer by showing a specific failure to follow his custom, and added nothing to his previous testimony.</p> <p>In trover for a heifer, where the question was one of identity, testimony of the son of one who raised a heifer that the heifer in question, which he saw in plaintiff’s barn, was the same heifer witness’s father had raised was not objectionable as calling for a conclusion, as it went merely to the identity and not to the ownership.</p> <p>If necessary to sustain the admission of that testimony, it will be presumed, in the absence of anything in the record to the contrary, that the witness had previously given evidence descriptive of the heifer, for to reserve the question as to the admissibility of the testimony as to the identity of the heifer in question with the one raised by witness’s father, without first describing the marks on the latter heifer, there should have been a statement in the record that the witness gave no evidence descriptive of the animal.</p> <p>In trover for a heifer, where the question was one of identity, and defendant’s evidence tended to show merely that the heifer in question was quiet and gentle at home, plaintiff was entitled to show in rebuttal that the heifer was not gentle and quiet to drive when away from home, but that it was then necessary to hamper her with ropes and straps.</p> <p>In trover for a heifer, where the ad damnum was $75, and the verdict was for plaintiff for $45.50 actual damages and $52.08 exemplary damages, a judgment for plaintiff for $75, after remittitur reducing the verdict to that amount, will not be disturbed on review, where the record shows no exception to the charge, and there is nothing in any of the exceptions taken that directed the attention of the court to the claim that it could not render judgment for an amount that included exemplary damages, and the record has no statement of any evidence bearing on the question of exemplary damages.</p> <p>Where it appears that the petitioner for a new trial on the ground of newly discovered evidence was represented at the trial by two attorneys,' the affidavit of only one attorney in support of the petition is not sufficient.</p> <p>Affidavits in support of a petition for a new trial on the ground of newly discovered evidence, which state merely that all possible diligence was used, are not sufficient, for they should state the action taken and the circumstances so that the court can see for itself whether the required diligence was exercised.</p>

M. Irish, Helen Harlow, appellant. Heard on an agreed statement at the September Term, 1911, Washington County, Taylor, J., presiding. Judgment affirming the decree of the probate court, which decreed the fund in question one-half to Helen Harlow and one-half to the testator’s brothers and sisters, or their legal representatives. The appellant excepted. The opinion states the case.

Appeal by Jennie M. Metcalf from the disallowance of her claim against the estate of Cyrus D. Metcalf. Declaration in book account. Special plea in bar of judgment to account.' Heard on demurrer to that plea at the September Term, 1914, Orleans County, Fish, J., presiding. Demurrer sustained, plea adjudged insufficient, and judgment to account. Defendant excepted. The opinion states the case.

Case for negligence in failing to make the demands and protests and to give the notices, requisite to perfect the liability of indorsers of current negotiable paper that defendant had undertaken to collect. First heard on demurrer to the declaration at the June Term, 1912, Caledonia County, Fish, J., presiding. Demurrer overruled and declaration adjudged sufficient, to which defendant excepted. That exception ordered to lie, and defendant allowed to replead without prejudice.

Assumpsit. Plea, the general issue. Trial by the city court of Montpelier, Moody, Acting Judge, on an agreed statement of facts. Judgment for defendant to recover its costs. The plaintiff excepted. The opinion states the case.

Assumpsit begun by trustee process, Citizens Savings Bank and Trust Company, Trustee, and First National Bank of Boston, Claimant. Judgment by default against the principal defendant. Hearing on the report of the commissioner as to the fights of the trustee and claimant, at the June Term, 1914, Caledonia County, Fish, J., presiding.

Appeal in Chancery. Heard on the pleadings and finding of facts by the chancellor at the September Term, 1914, Chittenden County, Butler, Chancellor. Decree for the orator. The defendant appealed. The opinion states the case.

Appeal in Chancery. Heard on demurrer to tbe bill at tbe June Term, 1914, Windsor County, Miles, Chancellor. Demurrer sustained, pro forma, and bill adjudged insufficient and dismissed, with costs to the defendants. Tbe plaintiffs appealed.

Case for negligence. Plea, the general issue. Trial by Jury at the September Term, 1913, Windham County, Miles. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of all the evidence the defendant’s motion for a directed verdict was denied, to which it excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1914, Washington County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. The rule that the declarations of a party to a suit are admissible to prove the stated facts does not apply to one suing in a representative capacity.

Appeal in Chancery, Windham County. Heard at Chambers, March 16, 1914, on the pleadings and a master’s report, Miles, Chancellor.' Decree that the bill be • dismissed, with costs to the defendants. The orators appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1913, Rutland County, Fish, J., presiding. At the close of all the evidence, the defendant moved for a directed verdict on the .grounds stated in the opinion. Motion denied, to which defendant excepted. General verdict for the plaintiff and the special verdict recited in the opinion.

Information charging adultery. Plea, not guilty. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Yerdiet, guilty; and judgment thereon. The respondent excepted. The opinion states the case.

General Assumpsit. Plea, the general issue. Trial by-jury at the June Term, 1914, Orange County, Fish, J., presiding. Verdict and judgment for defendant: The plaintiff excepted. 'This case has been twice before in the Supreme Court; see 84 Vt. 277, and 86 Vt. 182.

Information charging respondent and three others with statutory burglary. Plea, not guilty. Joint trial by jury at the June Term, 1914, Caledonia County, Fish, J., presiding, but the respondents severed in their defences. Verdict, guilty as to all, and judgment and sentences thereon. The respondents severally excepted. Heard in Supreme Court only as to respondent Frank IT. Hodgdon. The opinion states the case.

Cáse for negligence. Plea, the general issue. Trial by jury at the June Term, 1914, Caledonia County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for fraud. Plea, the general issue. Trial by court at the March Term, 1914, Orleans County, Butler, J., presiding. Judgment for defendant. The plaintiff excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings, including a cross-bill, and on a master’s report at the December Term, 1913, Orange County, Butter, Chancellor. Decree for the orators. The defendants appealed. The opinion fully states the case.

<p>Petition for a new trial, brought to the Supreme Court for Chittenden County at its May Term, 1915, and then heard on the pleadings. The opinion states the case.</p>

Replevin for six granite statues. Plea, the general issue. Trial by court at the September Term, 1912, Washington County, Miles, J., presiding. Judgment for the plaintiff to recover one dollar and its costs. The defendant excepted. The opinion states the case.

Petitions for writs of quo warranto by the State, on the relation of Josephine M. Martin, against Cortis M. Foley and Charles H. Farnsworth, and by the State, on the relation of Eugene S. Wright, against Daniel K. Keelan, Cortis M. Foley, and Charles H. Farnsworth, brought to the Supreme Court for the County of Franklin at its February Term, 191.5, and heard at its May Term, 1915, on the pleadings and on testimony taken and filed. The opinion states the ease.

Appeal in Chancery, Windham County. Heard at Chambers, August 20, 1913, on the pleadings and findings of fact by the chancellor, Fish, Chancellor. Decree for the orators. The defendant appealed. The bill has a prayer for general relief. The deed of the New England Hardwood Company is from the Deerfield Lumber Company. The cutting complained of was done by defendant in August, 1912. The opinion sufficiently states the other facts in the ease.

<p>Action of Covenant — Default Judgment — Construction and Conclusiveness — Bent—Issues Concluded — Parties—Objection — Waiver—Action Against Assignor — Set-off—Bights of Assignee — Equitable Set-off — Damages for Breach of Covenant of Seisin — Effect of Becovery on Title — Execution.</p> <p>A judgment is conclusive as to everything that might have been pleaded, or might have been given in evidence in defence, or to lessen the damages, except what might have .been pleaded in offset.</p> <p>A default judgment for plaintiffs, in an action for breach of the cove-pant of seisin in a warranty deed of real estate, established nothing beyond the material allegations of the declaration, and did not determine the right of defendants therein to receive rent in accordance with the terms of the sale.</p> <p>In a suit for a different cause of action, a former judgment is conclusive only of such matters as were actually determined.</p> <p>In a suit in equity by the grantor against the grantees to set aside a warranty deed of real estate, where the grantees had previously recovered a default judgment at law against the grantor for breach of the covenant of seisin in the deed and had assigned that judgment, the failure of the answer to object to the non-joinder of the assignees as parties defendant precluded that objection at the hearing, if a decree could be made securing the rights of all the parties in interest.</p> <p>An assignment of a non-negotiable chose in action, such as a judgment in a suit at law, will not preclude the judgment debtor from subsequently offsetting equities against the judgment creditor, which were mature and actionable before the assignment.</p> <p>In a suit in equity by a surviving husband, in his own right and as administrator of his wife’s estate, to establish his equitable ownership and the rights of his wife’s estate in real estate that was the property of his wife’s estate, but which he had by warranty deed coveyed to defendants after her death, and to have that deed set aside or a reconveyance made, the assignees of a previous default judgment against plaintiff in a suit at law by defendants for breach of the covenant of seisin in the deed are not necessary parties, especially where those assignees are defending the suit in equity as solicitors for the defendants therein, the assignors, for they are thereby defending their own rights.</p> <p>The surviving husband of an intestate leaving issue becomes immediately upon her death the owner in fee of one-third in value of the real estate of which she died seised in fee simple, subject to the payment of her debts and the administration expenses in default of sufficient personalty, and subject to the administrator’s right of possession for the purpose of that liquidation, and is entitled to have such interest - severed and set out to him, and with those limitations, he may make a valid conveyance of his share at any time after his wife’s death.</p> <p>A default judgment in an action for breach of the covenant of seisin in a warranty deed of real estate conclusively determined that there was a breach of the covenant for which the grantees were entitled to some damages, and the subsequent entry of judgment for full damages implies the establishment of the entire failure of title, and is conclusive as to the consideration received by the grantor and of its character as purchase money, for that was the measure of damages.</p> <p>Plaintiff, owning only one-third interest in certain real estate, who sold and conveyed the whole by warranty deed, and thereafter suffered judgment for damages in the grantees’ action for breach of the covenant of seisin, was not thereby precluded from subsequently asserting his right to a share of the rents due from the grantees under the contract of sale.</p> <p>In a suit in equity for an accounting as to rent a part of which was due plaintiff in his own right, the finding that defendants had no attachable property, except a judgment that they had recovered against plaintiff for breach of a covenant of seisin, affords a basis for the set-off of counter claims, and so is a ground for the exercise of equitable jurisdiction.</p> <p>Where plaintiff, owning only one-third interest in certain real estate, conveyed the whole by warranty deed, and thereafter, in the grantees’ action for breach of the covenant of seisin, suffered judgment for damages as for an entire failure of title, on payment of that judgment, directly or by set-off, tbe rights of the grantees in the property will cease, and the title will stand as it did before the deed was executed. •</p> <p>Where the grantee in a deed containing covenants that run with the land recovers for a breach of the covenant of seisin after he had conveyed the premises, it is the practice to stay execution until plaintiff procures and files a release from his grantee.</p>

<p>Probate Court — Sale of Realty — Payment of Debts — Matters Revieiuable — Questions Submitted by Agreement.</p> <p>Where the personalty of a decedent’s estate is insufficient to pay debts, and it is found that a sale of all the realty would not be required for their payment, but that a part of the realty could not be sold without injury to the remainder, a sale of all of the realty is authorized by P. S. 2868.</p> <p>This Court will not consider suppositional questions, questions submitted by mere agreement, or questions prematurely raised, however convenient or expedient their decision may be.</p>

<p>Sales — Entire Contract — Meeting of Minds — Mutual Consent— Evidence — Weight and Sufficiency — Husband and Wife— Acts of Husband as Agent — Binding Force — Gifts—Acts Constituting — Delivery and Acceptance — Trover—Findings —Construction—Witnesses—Private Memorandum — Admissibility.</p> <p>A sale of three young horses, a brood mare, and designated growing oats for $800 was an entire contract upon a single consideration.</p> <p>Where defendant, when she sold horses to plaintiff, gave him to understand, and he had a right to understand, and did understand, that three young horses were included in the sale, and defendant’s husband, whom she sent with plaintiff to show him the horses that she wanted to sell, pointed out a particular young horse as one of those to be sold, the sale included that horse, though defendant understood that she was reserving it, since her language and acts must be construed as plaintiff had a right to understand and did understand them, and it is not permissible for her to give them a different operation because of some unexpressed intention.</p> <p>Where a seller sent her husband to show the buyer the horses that the seller wanted to sell, the husband’s acts within the scope of his authority were her acts, and she was bound by his act in pointing out a particular horse as one of those to be sold.</p> <p>Where it appeared that when a colt that defendant then owned was foaled, defendant told her daughter, then about 14 years old, that the colt should be hers, and defendant’s husband then consented to this; that the colt was raised and kept on defendant’s farm with her other horses, and so far as appeared was used as one of defendant’s horses; that the daughter made her home with her parents during all the time and always called the horse hers, and it was so treated by the family, but it did not appear that she had ever exercised dominion over the colt when young, nor after it became a horse and was being used on the farm, until the colt was sold by defendant, when the daughter was about 20 years old, those facts did not show a delivery and acceptance, nor a completed gift, as matter of law, but made those questions issues of fact.</p> <p>In trover for a horse that plaintiff claimed to have bought from defendant,'though there was no express finding as to whether there had been a gift of the horse by defendant to her daughter, a finding that defendant at the time of the sale owned three young horses, one of which was the horse in question, inferentially found that there had been no gift.</p> <p>Evidence held sufficient to support the finding that at the time of the sale, plaintiff was not given to understand that defendant’s daughter then claimed the horse as her property.</p> <p>Where a witness testifies to facts or transactions that he professes to recollect, a private memorandum, confirmatory of his testimony, which he testifies was correctly made by him at substantially the time of the occurrences therein recited, and which he then knew and recollected, is admissible in connection with his testimony, regardless of whether it refreshes his recollection, for such a memorandum is admissible either when used to refresh the witness’s recollection, or when auxiliary to, or confirmatory of, his testimony as to facts that he professes to recollect.</p>

Appeal in Chancery. Heard on the pleadings and findings of fact by the chancellor at the September Term, 1914, Washington County, Fish, Chancellor. Decree dismissing the bill with costs. The plaintiff appealed. The opinion states the case.

Appeal in Chancery, Windsor County, June Term, 19Í4, Waterman, Chancellor. Heard on the pleadings, master’s report, and exceptions thereto by both parties. Orator’s exception sustained, those of defendant overruled, and decree for orator. The defendant appealed. The opinion states the case.

Complaint charging a violation of a city ordinance. Plea, not guilty. Trial by the city court of the city of Burlington, January 23, 1915, on an agreed statement, C. S. Palmer, City Judge. Judgment, guilty; and.sentence thereon. The respondent excepted. The opinion states the case.

<p>Assault and Battery — Evidence—Threat by Defendant — Cross-examination — Propriety—Opinion of Expert — Hypothetical Question — Supposed Fact not Shown by Evidence — Statement of Gotmsel — Effect—Requested Instructions — Conformity to Evidence. .</p> <p>In an action for assault and battery, testimony of a conversation between defendant and witness, in which defendant said that he was going to build a fence, and that he would like to set up a post there and have plaintiff pull it out, so he could get at him, was erroneously stricken from the record on the ground that it was not a sufficient compliance with the offer to show that defendant made a threat against plaintiff, for the testimony was a substantial compliance with the offer, or at least it was reasonably subject to the construction of being a threat, making the intended meaning a question for the jury.</p> <p>Error does not appear in the exclusion of a question on recross-examination, where the record does not show the question to have been proper recross-examination.</p> <p>In an action for assault and battery, where one of defendants testified that he met plaintiff’s servant going to plaintiff’s assistance and advised the servant not to do so, it was error to exclude the cross-question: “You did not want plaintiff to have any assistance there, did you?” as it was calculated to elicit the fact that the witness’s conduct was , actuated by prejudice and ill will against plaintiff.</p> <p>It was not error to refuse to allow an expert witness to answer a hypothetical question that assumed a material fact not in evidence.</p> <p>Where plaintiff was asked in rebuttal whether he intended by any of his acts to surrender his possession of a designated strip of ground, and thereupon counsel for defendant said, “We don’t clainrhe surrendered anything,” the exclusion of the question was not error, for the statement of defendants’ counsel was, like a judicial admission, binding upon them.</p> <p>Where a part of a requested instruction has no application to the facts that the evidence tends to show, the whole instruction is properly refused.</p> <p>It is not error for the court to ignore a requested instruction presented at the conclusion of the charge.</p>

Appeal in Chancery, Windham County, Fish, Chancellor. Heard at Chambers, March 27, 1915, on the pleadings and findings of fact by the chancellor. Decree dismissing the bill with costs. The orators appealed. The opinion states the case. The facts found show that the defendants did assent to the creation of the indebtedness in excess of the legal limit. Keys v. Union Pacific Tea Co., 81 Yt. 420; 2 Kent Com.

Appeal in Chancery. Heard on the pleadings and findings of fact by the chancellor, at the September Term, 1914, Washington County, Butter, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.

Appeal in Chancery, Washington County, Miles, Chancellor. Heard at Chambers, January 20, 1915, on the pleadings and finding of facts by the chancellor. Deeree for the orator. The defendant appealed. The opinion states the case.

<p>Review — Presumptions—Trial Court’s Statement of Claim— Deeds — Description—Boundaries — Establishment — Township Lot — Lines of Adjoining Lots — Presumptions—Range Line — Acquiescence — Knowledge — Evidence—Sufficiency—• Adverse Possession — Title—Disseisin—Intent—Interruption of Possession — Constructive Possession — Two Simultaneous Constructive Possessions of Same Realty — Mistaken Claim —Harmless Error — Exclusion of Evidence.</p> <p>Where the record shows that the trial court in its charge to the jury stated the claim of a party, it will be presumed on review that the court stated the whole claim.</p> <p>In a conveyance of a township lot, the designation of the land by lot and range number is in legal effect sa description according to the lines of such lot as surveyed and established in the original division of the town, as definite as if those lines were described, and those lines, if surveyed and marked on the ground, serve as monuments in fixing the boundaries, and determine the limits of the grant.</p> <p>But if those lines have never been surveyed, or when their location on the ground cannot be otherwise ascertained, resort may be had to the lines of adjacent lots to determine the location of the lines in question.</p> <p>Where there are no marks on the ground, an original range line of a township is taken to be straight, and its course across disputed land will be determined, prima fado, by extending it from a point where its actual location can be ascertained.</p> <p>Mutual acquiescence in a boundary line by adjoining landowners, who are not in defendant’s chain of title, cannot affect his rights in a third adjoining lot.</p> <p>Mutual recognition, of which actual or imputed knowledge is the very essence, is requisite to establish a boundary line by acquiescence.</p> <p>In an action involving a disputed boundary line, evidence held not sufficient to show a claimed line across defendant’s lot by either acquiescence or adverse possession.</p> <p>While one may, by mere intention, if uninterrupted, retain his actually acquired possession of real estate, intention or claim of ownership is not sufficient for the acquisition of such possession.</p> <p>Where I have the record title of a lot of land, under which I claim the whole lot, I have constructive possession of the whole, and nothing short of actual adverse possession can disseise me of any part of it, and so the owner of an adjoining lot, by merely running and plainly marking a line across my lot and thereafter being in continuous actual possession of his lot, claiming that line as the boundary, cannot have constructive possession of any part of my lot, especially where he is holding under a paper title limiting his constructive possession to the bounds of the adjoining lot.</p> <p>Any adverse possession by one in the chain of plaintiff’s title to a lot of land was interrupted during the time it was owned by the next grantee in that chain, who never went onto the lot, never did nor caused to be done any acts of possession thereon, and knew nothing about the boundaries thereof, so that his possession could not be tacked to that of subsequent grantees to make up the requisite period of continuous adverse possession. .</p> <p>In an action involving the boundary line of adjoining lots, evidence of plaintiff’s grantor that after he ran and marked on defendant’s lot ' the line in dispute witness claimed that line as the west line of his lot, while relevant to plaintiff’s claim of adverse possession of the disputed tract and acquiescence in the disputed line, was immaterial in view of his failure to introduce evidence of either such adverse possession or acquiescence.</p> <p>Testimony of such grantor that he had pointed out that line to one whom he hired to cut timber for him and who cut timber to that line, but opposite the lot of another and not on the disputed tract, was immaterial on the issues of adverse possession of the disputed tract and acquiescence in the disputed line.</p> <p>The claim and acts of such grantor only while he was the owner, and in possession, of the lot were material, and so his testimony that he concluded that his claim was unfounded, without showing when that conclusion was reached, was properly excluded.</p> <p>Testimony that the owner of a timber lot, who had never been thereon, never did nor caused to be done any acts of possession on it, and knew nothing about its boundaries, sent prospective buyers, who were later his grantees, to his grantor for information as to the boundaries of tjie lot, who pointed out to them the boundaries as he claimed them while owner, did not tend to show the claim made by the owner as to the bounds of the lot.</p> <p>Declarations of a former owner of land as to its boundaries, made after he has parted with his title, are not admissible.</p> <p>In an action involving a disputed boundary of a timber lot, testimony of plaintiff’s immediate grantor that just before he conveyed to plaintiffs he pointed cut to them the line in question as a boundary line was incompetent as evidence of the location of the range line across the disputed tract, but would be admissible on an issue of adverse possession, as tending to connect the claim and occupation of witness with that of plaintiff.</p> <p>In an action involving a disputed boundary of a timber lot, it was error to exclude testimony for defendant that a surveyor employed by the common grantor, when running a line from which plaintiffs’ claimed line was an extension, had no notion that he was running a range line, but ran it because his companion wanted to have it run on the same course as the range line for purposes of his own, where it appeared that' the companion represented the common grantor in the survey, and that plaintiffs were claiming that the line run by the surveyor was run by such grantor’s agents as part of the east line of plaintiffs’ lot and fixed the location of the whole east line thereof, and the question of what the surveyor understood he was doing when he ran the line was directly submitted to the jury on the question of the establishment of the line by acquiescence.</p>

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1914, Windham County, Waterman, J., presiding. At the close of all the evidence defendant moved for a directed verdict. Motion overruled, to which defendant excepted. Verdict and judgment for the plaintiff. The defendant excepted. This ease has been once before in the Supreme Court, see 86 Vt. 550.

Assumpsit. Plea, the general issue. Trial by court at the September Term, 1914, Washington County, Miles, J., presiding. Judgment for the plaintiff. The defendant excepted. The plaintiff and the defendant are real estate brokers and have been for quite a number of years.

<p>Appeal in Chancery — Findings of Fact — Conclusiveness—Authority of Officers — Apparent Authority — Secret Limitations —By-latus—Equitable Assignment — Consideration—Forbearance of suit.</p> <p>The findings by a chancellor on question of fact are conclusive on appeal to this Court, which sits only as a court of error in such cases; but, where a finding is really an erroneous conclusion of law, it will be rectified on appeal.</p> <p>On interpleader between a bank and the assignee for creditors of an electric company to determine the right to a fund, it appeared that the electric company wanted to borrow money from the bank to buy an electric business, but was told by the bank that it could not accept the company’s notes, whereupon the company by resolution- authorized its president to give his personal notes to the bank, to be indorsed by tbe company, the avails of which were to' be used for the purchase of said business for the company, the company to issue its paid-up stock to him, redeemable pro tanto upon payment by the company of the notes as they became due; that the stock was accordingly issued to the president, who executed three notes to the bank and assigned the stock to it as security, the company’s treasurer and general manager agreeing with the hank that the notes would be paid “at the rate of $1,000 per year from the proceeds of the business of the company;” that later the company equipped a building-belonging to the cashier of the hank and others; that when the company asked the cashier for a partial payment on the contract he told it that the bank intended to sue on the notes and trustee himself and associates as creditors of the company, whereupon the company’s treasurer and general manager agreed with the cashier of the bank that, in consideration that the bank forebear suit, part of the amount owing on the contract should be withheld, and applied when due to the payment of the notes held by the hank, and the bank accordingly fore-bore suit, and the money was withheld and constituted the fund in question. Held, that the agreement of the treasurer and general manager that the company would pay the notes was binding on it, since the making of such an agreement in the circumstances was within his apparent authority.</p> <p>The chancellor’s finding “that the bank had no legal or equitable claim against the electric company by reason of this transaction” is merely a conclusion of law, and so is subject to review.</p> <p>The agreement by the company’s treasurer and general manager with the cashier of the bank for the retention of part of the money due the company on the contract and its application to payment of the notes held by the bank, in consideration of forbearance of suit by the bank, amounted to a present and perfected equitable assignment by the company of. such sum for that .purpose, was within the apparent scope of the treasurer’s combined authority as receiving and disbursing officer of the company and its general manager, and binding on it, in the absence of knowledge by the bank of any limitation upon such authority.</p> <p>The statement by the chancellor in his findings of fact that, on the facts found and a consideration of the nature of the agreement, he is unable to find that the company’s treasurer and general manager had authority to make the agreed assignment, is a mere conclusion of law from the facts found, and so reviewable.</p> <p>It seems tliat the promise by the bank to forebear suit was a sufficient consideration for the assignment to it by the company of part of the amount owed it by the cashier and his associates under the contract for equipping the building, and the pre-existing obligation of the company to the bank oh the notes' was alone a sufficient consideration for the assignment.</p> <p>Limitations imposed by the by-laws of a corporation upon the apparent authority of its officer will not affect one who in good faith deals with such officer within the scope of his apparent authority, without knowledge of such limitation, for such an one is not legally chargeable with knowledge of extrinsic facts that abridge such apparent authority.</p>

Assumpsit to recover money expended in the support of a pauper. Plea, the general issue. Trial by court at the September Term, 1914, Rutland County. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

General Assumpsit with a count in covenant, filed in amendment. Plea, the general issue. Trial by jury at the March Term, 1914, Rutland County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case.

Case for negligence. Plea, the general issue. Trial by-jury at the June Term, Windsor County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the ease.

Information charging that the respondent allowed his hound dogs to run at large, unaccompanied by owner or keeper, in violation of law. Plea, not guilty. Trial -by jury at the September Term, 1914, Chittenden County, Butler, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted, but did not file his duly signed and allowed bill of exceptions until after the adjournment of the term.

Case for negligence. Plea, the general issue. Trial by jury at the June Term, 1914, Windsor County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on tbe pleadings and finding of facts by the chancellor at the December Term, 1913, Bennington County, Slack, Chancellor. The following material facts were found by the chancellor.

Trover, with a count in deceit. Plea, the general issue. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Yerdiet and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery, Windsor County. Heard at Chambers, October 3, 1914, on the pleadings, master’s report, and defendant’s exceptions thereto. Exceptions overruled, and decree for the plaintiff. The defendant appealed. The opinion states the case.

Potter, contestant. Trial by court at the September Term, 1914, Rutland County, Slack, J., presiding. Judgment establishing the instrument as such will. The contestant excepted. The opinion states the ease.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1912, Franklin County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Book Account. Heard on the report of an auditor, and defendant’s exceptions thereto, at the June Term, 1915, Orange County, Slack, J., presiding. Exceptions overruled and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery, Windham County, April Term, 1915. This case has been once before in the Supreme Court, 88 Yt. 335, when the decree below for the plaintiffs was affirmed and cause remanded for the assessment of damages. Heard on a special master’s report assessing the damages, Butler, Chancellor. Decree for plaintiffs. Defendant appealed. The opinion states the ease.

<p>Municipal Corporations — Authority of Agents — Evidence of Agency — Construction—Contracts—Ambiguous Phrases— Questions for Jury — Compensation for Extra Work — Delay in Performance — Waiver—Interpretation of Written Contracts — Admissibility of Parol Evidence — Experts—Examination — Opinion Evidence — Subject of Expert Testimony — Scope of Cross-examination — Remarks of Counsel • — Harmless Error.</p> <p>In an action on a written contract for the construction of a concrete dam, providing that the price, which was a “lump sum,” “must cover the total expense of securing a proper foundation and building the work specified to lines and levels and in the manner called for in the plans and specifications,” and that the work must conform exclusively to designated “plans and drawings,” where it appeared that on the designated plans was a drawing, “Profile Across River at Dam,” whereon was a line representing the surface of the river bottom with the elevations thereof at intervals of 20 or 25 feet, and plaintiffs’ evidence tended to show that the word “levels” as an engineering term meant elevations, that the “lines and levels” to which reference was made included the profile line and the elevations thereon, and that the plans showed the river bottom to be solid rock, requiring practically no excavation below the profile line, on which, as plaintiffs’ evidence tended to show, they required the dam to be founded, and that the contract price did not include the excavation and filling with concrete of a pocket or fissure in the river bottom below, that line, while defendant claimed and its evidence tended to show, that the work of ixcavating and filing the fissure was not extra work but was exacted by the contract, which required the dam to be constructed on solid rock, wherever found, and there was parol evidence of the circumstances in which the contract was executed, and that the conversations and acts of the parties, and their contemporaneous and subsequent practical construction of the contract was in accordance with plaintiffs’' contention. Held that, although no ambiguity appears on the face of the contract, a latent ambiguity, consisting in the equivocal or uncertain meaning of the phrase, “to lines and levels and in the manner called for in the plans and specifications,” was raised by extrinsic evidence, and so it was for the jury to say whether the parties understood the contract as claimed by plaintiffs.</p> <p>In an action for extra work under a written contract with a village for the construction of a concrete dam, which provided that extra work must be covered by an order in writing, where the evidence tended to show that plaintiffs and the agents of the village, with whom the contract was made in its behalf, understood that the foundation of the dam was to be constructed substantially oh the bed of the river, and that such agents must have known that the excavation and filling of a fissure in the river bottom, found necessary because it was filled with a substance unsuitable for the foundation of a dam, was not covered by the contract, nor by any order in writing, but was covered by a verbal order of their inspector, but they made no objection to that work and subsequently accepted the benefit thereof, that in many other instances extra work was done under only the verbal directions of the inspector, no instance of a written order being shown, the finding that there was a general waiver of the requirement of a written order covering extra work was warranted, as such waiver may be- inferred from an order to do extra work in circumstances such as imply a promise to pay therefor.</p> <p>Under a written contract with a village for the construction of a dam, which provided that extra work must be covered by an order in writing and should be paid for at actual cost plus 10 per cent., where the village waived the requirement for such order in writing, the remainder of the provision as to extra work was in full force and constituted an express promise to pay for extra work, covered by any order from a proper source, at actual cost plus 10 per cent.</p> <p>In an action against a village on a contract to build a dam and pen-stock in connection with its power plant, where defendant claimed that plaintiffs failed to install a required clean-out- gate in the old plant, that the penstock for 200 feet was out of the required grade and level, that surplus excavated material placed around and over the penstock was not tamped and puddled as required, that much of the penstock was covered with frozen material, and that the penstock was lined with concrete instead of with asphalt, as required, and there was evidence that plaintiffs acted in good faith in failing to install the .gate, and were delayed in so doing till after the water had been turned into the penstock and possession of the plant taken by defendant, after which it was not practical to do the work, that defendant never offered to shut down the plant, nor mentioned the gate, till after plaintiffs understood the work was completed, that defendant’s inspector knew the gate had not been installed and how the work was being done in other respects, but made no objection thereto, and that, with full knowledge of plaintiffs’ failure strictly to perform, defendant voluntarily accepted the work, took possession and had the beneficial use thereof, a verdict should not be directed for defendant because of plaintiffs’ failure strictly to perform the contract.</p> <p>Where, after the time fixed by the contract for the completion of the dam, defendant allowed the work to go on as before, with its inspector in charge thereof, treating the contract as still in force, it waived strict performance as to time; and, though it might have been entitled to recoup for the damages suffered by the delay, the delay could not defeat the contractors’ right of recovery.</p> <p>Several remarks by plaintiffs’ counsel held either not objectionable or harmless to defendant.</p> <p>Defendant cannot complain of remarks by plaintiffs’ counsel which were provoked by an improper discussion by defendant’s counsel of an objection to evidence.</p> <p>In an action on a contract for the construction of a dam, where plaintiff claimed that it was understood that the river bottom was bed rock, and that a line in the plans representing that bottom was understood to indicate the bottom line of the construction, while defendant claimed that the foundation should go to solid rock, wherever that might be found, an expert civil engineer and building contractor, who in connection with work similar to that in question had been called upon to examine plans, specifications, and contracts to determine the work to be done, was properly allowed to examine the plans and specifications and to express the opinion that the line representing the profile of the river bottom was the line of the bottom of the excavation for the dam.</p> <p>An expert, who testified that in his opinion the profile line was the line of the bottom of the excavation, and was asked on cross-examination whether the plans indicated the quality of the river bottom, and answered that any one who saw the plans without seeing the location might be in doubt, was properly allowed on redirect examination to state what, if anything, there was in the site to leave one who had seen it without doubt.</p> <p>The court, in its discretion may allow an irresponsive but material answer to stand.</p> <p>On the issue of whether a sketch of a cross-section of the dam, shown on the plans, was intended as a typical cross-section, or only as a cross-section.of the dam at a particular point, a civil engineer of long experience was properly allowed to testify that it seemed to be a typical section, over the objection that he should be asked what the plan said the section was, as his answer was only another way of saying that in his opinion the section was a typical section.</p> <p>An expert, having testified for plaintiffs that a cross-section of the dam shown on the plans seemed to be a typical cross-section, and who was asked on cross-examination concerning what the plans indicated as to requiring bedrock for the foundation of the dam, and whether there was anything in the plans, in the profile line, or in -the typical section, to indicate the character of the ground along the profile line, was properly asked on redirect examination whether he had seen the situation in question, whether from that and from his experience and knowledge as an engineer he could tell what was the surface of the ground along the profile line, and whether from the typical section and the diagram on wliich the profile line appeared he could tell what the surface of the river bottom was represented to be.</p> <p>Where there was a dispute as to the meaning of the word “levels” in a provision of a construction contract that the work was to be built “to lines and levels in the manner called for by the specifications,” plaintiff, a civil engineer of long experience, was properly allowed to testify that the figures along the profile line indicating levels were to be taken, as exact, and being thereupon reminded by his counsel that he had testified that, assuming the bottom of the river to be bedrock, there was expected to be loose material upon the surface which would be swept off, and asked whether any deduction had to be made for this, or whether it was taken into consideration in arriving at the figures placed on the plan, he was properly allowed to answer that the levels, or elevations, meant to him the deepest soundings taken to bedrock, and that the foot or six inches, or whatever it might be, was above those levels, and that, in arriving at the quantity of excavation for which plaintiffs claim, no deduction was to be made from the quantity of excavation below the base line.</p> <p>Where a contract with a village for the construction of a dam authorized the inspector for the village to give orders and directions concerning designated matters, and provided that designated parts of the work should be done to his satisfaction, the authority thus expressly given carried with it, by necessary implication, authority to do all acts that might be necessary for the purpose of effecting the objects for which the express authority was given.</p> <p>In an action against a village on a contract for the construction of a dam and a steel penstock for use in connection therewith, evidence as to directions concerning the work given by an inspector in charge of the work for the village, was admissible on the question of his agency for the village, as agency need not necessarily be established by direct evidence, but may be proved by circumstances; and while the mere fact that a person assumes to act as agent for another is not - sufficient to show agency, if his acts are so open and notorious that they must have been known to the one for whom he assumed to act, they are evidence of agency.</p> <p>The testimony of a manufacturer, who installed the penstock at the dam in question under a contract with plaintiffs, as to discussing the work with the inspector, that he sent specifications. of the penstock to the inspector, and delivered them to him in the presence of two of the water and light commissioners, that they all talked the matter over, and he left the specifications there and never saw them again nor furnished any others, was admissible on the question of the inspector’s agency for the village,, and it was immaterial that what took place between the witness and the inspector regarding the specifications was before the contract between plaintiffs and the village was made, it appearing that, before that contract was made, the inspector was acting for the village in connection with the matter of constructing a dam, and it being inferable that the specifications were received by the commissioners with knowledge of what the inspector had done in respect of their procurement.</p> <p>In an action against a village on a contract, for. the construction of a dam, involving a question as to the extent of the inspector’s agency for the village, where a witness testified without objection that he furnished specifications for a penstock to the inspector “representing the village I supposed,” an exception to his subsequent testimony that he supposed he furnished them to the village was without force, as this testimony was in substance the same as his previous testimony.</p> <p>In an action against a village to recover for alleged extra work under a contract for the construction of a dam, the testimony of one of the village water and light commissioners that, while the work in question was being done, he understood that plaintiffs understood that they were doing the work because it was required by the contract to be done, was properly excluded as the opinion of the witness, where no foundation had been laid by proving the facts from which witness arrived at his conclusion as to plaintiffs’ understanding.</p> <p>In an action against a village on a contract for the construction of a dam providing that the contract price “must cover the total expense of securing a proper foundation and building the work specified to lines and levels and in the manner called for in the plans and specifications,” where there was a dispute as to whether a line representing the river bottom appearing on a “Profile Across River” in the plans was the bottom line of the construction, and whether excavation below such line, made necessary by the discovery of a fissure containing matter unsuitable for a foundation, was covered by the contract, or was extra work, on the questions whether the parties gave a contemporaneous and subsequent practical construction of the contract, and whether it was on that understanding that plaintiffs made their estimate, a witness was properly allowed to testify that he assisted plaintiffs in arriving at the estimate of the expected cost of the work, and that he therein consulted such profile.</p> <p>It appearing that such engineer was present when defendant’s' engineer made soundings of the river bottom through the ice, he was properly permitted to testify that when he made the soundings he supposed he struck rock bottom at every sounding, the result of liis investigations having been communicated to plaintiffs and by them taken into consideration in making their bid.</p> <p>The order'of the reception of evidence is within the discretion of the trial court.</p> <p>In a suit against a village for alleged extra work under a contract for the construction of a dam, which provided that any extra work should be paid for at actual cost plus 10 per cent., evidence as to the rental^ value of machinery such as plaintiffs used in the claimed extra work was properly admitted against the objection that there was no evidence that plaintiffs used any other or different machinery than théy had there for the work they expected to do, as reasonable compensation for the use of the machinery was a matter to be considered, in determining the actual cost of the extra work.</p> <p>In an action against a village on a contract to recover for alleged extra work in excavating and filling a fissure containing a substance unsuitable for a foundation for a dam, where plaintiffs claimed that it was understood by both parties that the bed of the river was rock bottom, that the actual condition could not have been discovered in advance without experimenting at disproportionate expense, and that the plans showed that a line indicating the river bottom was to be the bottom line of the construction, a witness was properly allowed to testify that during the work he and others went out into the stream and made soundings to discover a place suitable for a cofferdam, and that they found the bottom to be what they called rock bottom.</p> <p>Testimony that plaintiffs looked the site over before making their bid, that in making it they took into consideration what they had observed, and that, from their observation and the information they then obtained, they concluded the bottom of the river was rock, was properly admitted on the question of what means plaintiffs took to ascertain the character of the river bottom and how the plans were understood by the parties when the contract was executed.</p> <p>One of the plaintiffs having testified that before bidding, at a meeting with defendant’s water and light commissioners, he was shown the plans and certain notes regarding the dam,. he was properly allowed further to testify, against the objection that the notes were the best evidence of what they were, that he understood the notes to be the elevations and soundings taken by defendant’s engineer at the site of the dam; as showing that plaintiff, in addition to a view of the site and an examination of the specifications, had also, as a guide to aid him in determining what he might do, what was represented to him as being the notes of the engineer who made the plans.</p> <p>Where no ground of an objection to the admission of evidence is stated below the only question on review is whether the evidence was material or relevant in any state of the case.</p> <p>In an action against a village on a contract for the construction of a dam, where plaintiffs claimed that a provision that the work should be built “to lines and levels * * * called for by the plans and specifications” meant a line, with the elevations thereon, shown on the plans and representing the river bottom, and that excavation below that line was, therefore, extra work, evidence that, at a meeting with the village water and light commissioners before plaintiffs. made their bid, there was a general discussion concerning the river bottom, and. that it was then said to be rock, and that said line was referred to as being the base line, or line above which the foundation of the dam was to be built, was admissible, for although oral evidence is not admissible to enlarge, vary, or contradict the terms of a valid written contract, such contract is to be read in the light of the surrounding circumstances and considered with reference to its object, and the parol evidence rule is not infringed by admitting oral evidence to explain a latent ambiguity.</p> <p>Evidence that during the progress of the work the village water and light commissioners were present at different times, and that once two of them, being less than a majority, in company with the inspector in charge of the work for the village, ordered designated changes in the work, was admissible to show the commissioners’ knowledge of the conditions making the extra work necessary, for knowledge by, or notice to, an agent while acting for his principal, of facts affecting the transaction, is notice to the principal.</p> <p>Evidence held sufficient to show that the inspector in charge of the work for the village was the authorized agent of the village water and light commissioners in whatever he did by way of ordering extra work ánd materials, or in connection therewith.</p> <p>Declarations of the water and light commissioners while on the work for the purpose of giving orders respecting changes in the work were admissible as a part of the res gestae.</p> <p>In an action on a contract for the construction of a dam, to recover for extra work consisting of excavating a fissure in the river bottom and filling it with concrete, testimony that the condition of the river bottom could not, without actual experiments, have been determined before the work was begun, and that plaintiffs did not in fact know where they would find bedrock until they struck it, was admissible on the question of whether there was a waiver of the requirement of the contract that extra work should be covered by an order in writing.</p> <p>Testimony of a civil engineer that the condition of the river bottom could not have been discovered without actual experiments did not relate to a matter about which the jury could judge as well as the witness.</p> <p>In an action against a village on a contract for the construction of a dam, to recover for extra work consisting of excavating a fissure in the river bottom and filling it with concrete, where it appeared that the contract. provided that monthly the village should make an estimate of the proportionate value of the work done and that the amount thereof, less 15 per cent., should be then due plaintiffs, and one of plaintiffs testified that he made some request of defendant’s engineer, who was about to make such monthly estimate, in reference to the work done in the fissure, and that the engineer promised to consider it, the witness was properly allowed further to testify that the engineer subsequently stated that he had considered it, where it appeared that he did not include that work in the monthly estimate; as his statement that he Had considered that work was a declaration made in connection with an act done in the course of his agency and tending to explain his omission of that work from the monthly estimate, and was admissible on the question of whether that work was extra work, and also to show notice to the engineer that plaintiff was claiming pay for it as extra work, which would be notice to the village.</p> <p>On the issue as to whether a line, shown in the plans on a profile of the river bottom, was understood to indicate solid rock and to be the bottom line of the construction, where one of plaintiffs was asked on cross-examination why, if a cross-section of the dam, shown on the plans, required him to go to solid rock, they did not have to go to solid rock along the whole length of the spillway, his answer that nothing on that page of the plans made any difference, that the whole plan told him to go to rock, and that the profile line showed that they would find rock at the levels marked thereon, was responsive.</p> <p>In an action on a contract for the construction of a dam which required the work to be built “to lines and levels and in the manner called for in the plans and specifications,” involving a dispute as to whether excavating and filling below a line, shown in the plans on a profile of the river bottom, was extra work, testimony of one of plaintiffs, as to the points or lines between which he estimated the yardage of the work before bidding;, was admissible as bearing on the question of plaintiffs’ understanding of the plans and specifications, and on the question of whether the parties gave contemporaneous construction of the contract.</p> <p>The court properly ruled that a civil engineer, called by defendant to testify regarding the possibility of determining the character of the river bottom in advance, and who testified that he had read of, but had never used, the “wash-boring” method of determining the character of river bottoms, was no.t competent to express an opinion as to the feasibility of using that method in a locality filled with a particular kind of material, where it did not even appear whether he had read of that method in some scientific book or in some periodical publication.</p> <p>Defendant’s offered testimony of an expert civil engineer that it would be “very foolish” to require that a dam should be built along the profile line shown on the plans, assuming that it was the profile of the surface of the river bottom, was properly excluded, as the characterization of such a requirement was not a matter of expert testimony.</p> <p>An expert civil engineer having testified for defendant that, if the profile line was intended to be a grade line on which to found the dam, anything going below that line would be shown by a dotted line, and that, if he had been drawing the plans on the theory on which defendant claimed they were drawn he would draw them as the plans in question were drawn, he was properly cross-examined as to whether, if he wanted to provide for the unexpected, he would put on the plans and specifications something about what might be discovered, and indicate something as to bids on that basis, and as to whether a few nights before he had not told the cross-examiner that it was witness’s custom to provide in the plans and specifications that the bidder should name the price for anything below the line in case it should be found necessary.</p> <p>The exclusion of an exhibit that is not furnished on review will not be considered.</p> <p>In an action against a village to recover for alleged extra work under a contract for the construction of a dam, one of the village water and light commissioners having testified for defendant that plaintiffs’ hid, though the lowest, was considered too high,, and that an effort was made to reduce the cost of the dam without impairing its efficiency, and for that purpose a meeting was had with one of plaintiffs, was properly cross-examined as to whether he had an opinion as to the expense to which the commissioners intended to put the village, and as to what he thought was the proper amount.</p> <p>One of the water and light commissioners, having testified for defendant that he never understood that a designated person had any connection with the preliminary survey and exploration for the dam except at his own request, and that witness never sent him to Burlington to see an engineer, was properly cross-examined as to whether it was his understanding that this person did go to Burlington, and whether witness was so informed by a third person.</p> <p>A charge need not single out and make prominent a particular feature of the evidence which is not determinative of any issue in the case.</p> <p>In an action on a contract for the construction of a dam, providing that the work should be done “according to the plans and drawings,” a requested instruction, framed on the theory that the work should be done under the terms and conditions of “the written contract and the plans and specifications thereunder,” was properly refused.</p> <p>In an action on a-written contract involving a dispute as to its meaning, which was properly submitted to the jury, a requested instruction that no act of plaintiffs, or of a designated employee of theirs, after the execution of the contract, could be evidence in favor of plaintiffs touching its force, effect, or construction, or as to their understanding of its force, effect, or construction, was properly refused, because how the parties understood the contract and their practical construction thereof were facts material to be considered by the jury.</p> <p>Where there was a general waiver by the village of a provision in its favor in a written contract for the construction of a dam that extra work should be covered by a written order, and work that was ordered and done was in fact not within the contract, the contractors were entitled to pay therefor, though the agents of the village believed, at the time the work was being done, that it was within the requirements of the contract, and so, a requested instruction that, if while the work was being done, a majority of such agents honestly believed that the contract and the plans and specifications thereunder required the contractors to do that work, there was no waiver of the requirement that extra work should be covered by a written order was properly refused, especially where the court instructed that, if the work was extra, and, if after it was completed, the dam was delivered to the village and by it accepted with actual or imputed knowledge that the work in question was extra work, or that it had been done without any written order therefor, the contractors might recover.</p> <p>In an action on a written contract for the construction of a dam, to recover for alleged extra work, a request for an instruction on the hypothesis of plaintiffs’ reliance on the conduct and silence of defendant’s inspector as constituting a waiver of a requirement that extra work should be covered by a written order was properly refused, where plaintiffs did not rely solely on such conduct and silence to work such waiver.</p> <p>In such action, requested instructions, including the element of a misunderstanding of the requirements of the written contract and the plans and specifications thereunder by plaintiffs, were properly refused, where there was no claim by plaintiffs that there was any misunderstanding, but there was a disagreement as to the proper interpretation of the contract in certain respects in which it was ambiguous.</p> <p>It is not error to refuse requested instructions, embodying general propositions of law not involved in the case on trial, however correct in form and substance.</p> <p>In an action on a contract for the construction of a dam, requiring that the work should be built “to lines and levels and in the manner called for in the plans and specifications,” where there was a dispute as to whether it was understood and intended that a line shown in the plans as the profile of the river bottom was to be the bottom line of the construction, or whether it was understood that the contractor was to go to solid rock wherever found, instruction held to have submitted this question to the jury in a manner fully protecting the rights of both parties.</p> <p>In an action on a contract for the construction of a dam, the instruction that, in order to find that defendant had accepted the work as fully performed, it must appear that defendant had taken the possession and use of the dam with the intention of relinquishing all claim upon plaintiffs for failure fully to perform, told the jury all and more than defendant claimed in the exception to the charge in that connection, for failure to instruct that the mere use and beneficial enjoyment of the dam by defendant could not of itself constitute an acceptance.</p>

Appeal in Chancery. Heard on the pleadings and a master’s report, and defendant’s exception thereto, at the June Term, 1914, Caledonia County, Butler, Chancellor. Exceptions overruled, and decree for the plaintiffs. The defendant appealed. The opinion states the case.

General Assumpsit. Pleas, the general issue, payment, and the Statute of Limitations. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.

Information charging an assault with intent to kill. Plea, not guilty. Trial by jury, at the June Term, 1914, Orange County, Fish, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The transcript is referred to and made a part of the bill of exceptions.

<p>Trade Name — No. 117, Acts 1908 — Construction—Return of Trade Name — Necessity — Agister’s Lien — Possession— Waiver of Lien — Whether Question of Fact — Trover— Maintenance of Action — Right of Immediate Possession ——Fraudulent Conveyance — What Constitutes — Husband’s Donation of His Services to Wife — hist ructions.</p> <p>Under No. 117, Acts 1908, requiring one doing business in a name other than his own to cause to be recorded in the town clerk’s office a return reciting the name under which such business is conducted, where the name of the business conducted by plaintiff was the Vermont Produce Company, a return giving the name as the Vermont Products Company is sufficient, for such a slight error is not likely to mislead.</p> <p>Things may be illegal as regards the purpose of a regulative statute without being illegal in the sense of being void.</p> <p>The mere provision for an injunction in ease business is conducted contrary to the requirements of a regulative statute does not necessarily imply that transactions so conducted are outside the field of legal remedy.</p> <p>§3, No. 117, Acts 1908, requiring the return of a person doing business under a name other than his own to be filed in the office of the town clerk within ten days after the commencement of business is directory merely, although §6 declares that any person conducting business contrary to the act may, upon complaint of the commissioner of taxes, be enjoined; for §11 prohibits the institution of proceedings for the enforcement of any right or obligation unless the return has been filed and the registration fée paid prior to the issuance of the original writ, and so clearly recognizes the validity of claims accruing to one doing business in disregard of the ten-days requirement.</p> <p>An agister has no lien at common law except by agreement, and, although a lien is given agisters by P. S. 2G58, retention of possession is necessary to such lien.</p> <p>While waiver of a lien rests largely in intention and is ordinarily to be determined by the trier of fact, the court, where the facts are conceded, leaving no inference to be drawn as to the lienor’s intention, may, as matter of law, determine that a lien has been waived.</p> <p>Possession, or the right to immediate possession, is essential to the maintenance of trover.</p> <p>Where defendant, an officer having for service an execution against the property of plaintiff’s husband, agreed with an agister pasturing plaintiff’s colt to pay the pasturing in case possession was surrendered, and defendant, with the agister’s consent, later took the colt under the execution, as the property of plaintiff’s husband, the agister’s lien was by the agreement and surrender of possession, wholly waived, and plaintiff’s right to immediate possession restored, and so she could maintain trover against defendant for the conversion of the colt.</p> <p>Where a wife owns a business, her husband may give her his services in connection therewith, regardless of his creditors.</p> <p>Though the bill of exceptions recites an exception to the refusal of a designated instruction, such exception will not be considered on review, where the transcript is made controlling and shows that no such instruction was requested.</p> <p>Where plaintiff claimed that a business belonged to her, and not to her husband, and that defendant had converted her colt by seizing it under an execution against her husband, a charge that too great care to make a transaction seem regular is a badge of fraud was properly refused.</p>

<p>Costs — Taxation of Transcript — Statutory Authority — Common Latv.</p> <p>While the taxation of costs, eo nomine, was unknown at common law, by the Statute of Gloucester, G Edw. I, costs were allowed a successful plaintiff in real actions, and by later statutes in all actions, and the same right was given a successful defendant by 23 Hen. VIII and subsequent amendments, and as our statute of 1779, adopting “the common law as it is generally practiced and understood in the New England States” adopted the common law of England as altered by statutes in force October 1, 17G0, the date arbitrarily selected as the date to which our statute related, the usual statement that “it is only by force of our statutes that costs are ever taxed and allowed” would be less confusing if it recited that it is only by force of our statutes that costs are taxed and allowed in cases where they were not allowed by the law of England in force October 1, 1760.</p> <p>P. S. 6234, requiring that designated costs shall be taxed to the successful party, was not intended to restrict, but rather to enlarge, the costs that would otherwise be recoverable, and so the fact that it makes no mention of the cost of the transcript does not preclude the taxation thereof, where the transcript is made a part of the record.</p> <p>Where the transcript is referred to by the bill of exceptions and made a part thereof, so far as material, Supreme Court rule 5, requiring the advancing party to procure a certain number of printed copies of the case, and fixing the fees therefor, authorizes the allowance of the costs of the transcript to a prevailing exceptor, not to exceed the statute price per folio.</p>

Covenant. Plea, the general issue with notice of special matter in defence. Trial by jury at the June Term, 1915, Orange County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the ease.

<p>Attorney and Client — Disbarment—Grounds—Deceiving Client.</p> <p>An attorney is guilty of misconduct requiring his disbarment, where he repeatedly falsely told his clients that he had not collected their claims, in one instance persisting in the denial for three months and until the client produced a letter from the debtor stating that he had paid the claim.</p>

Complaint, filed in the city court of the city of Barre by a grand juror under P. S. 5204, charging that the respondent did at divers times sell or furnish intoxicating liquor without authority. Trial by jury, Scott, Judge. Verdict, guilty; and judgment and sentence thereon. The respondent excepted. The opinion states the case.

General Assumpsit, Windham County, April Term, 1915, Butler, J., presiding. This is an appeal from the judgment of a justice of the peace in an action of general assumpsit. In the writ the plaintiffs are set up as “A. H. Wilson and C. J. Wilson partners doing business under the firm name and style of Wilson Bros. Garage,'” of Brattleboro, this State.

Information charging the unlawful sale and furnishing of intoxicating liquor. Plea, not guilty. Trial by jury at the June Term, 1915, Caledonia County, Miles, J., presiding. Verdict, guilty, and judgment and sentence thereon. The respondent excepted. The opinion states the case.

General Assumpsit for money had and received. Plea, the general issue. Trial by court at the September Term, 1914, Orleans County, Fish, J., presiding. Judgment for defendant. The plaintiff excepted. The opinion states the case.

Assumpsit. Heard on demurrer to the declaration at the June Term, 1915, Bennington County, iWaterman, J., presiding. Demurrer overruled, pro forma, and declaration adjudged sufficient. The defendants excepted. The opinion states the case.

Petition for a new trial on the ground of newly discovered evidence, brought to the Supreme Court for Windsor-County at its October Term, 1915, and then heard on the pleadings.

Petition by the libellee in a divorce proceeding for the revision of an order directing him to pay $1,500 permanent alimony to his divorced wife, charged with the support of their minor child. See 88 Vt. 134. Heard at the December Term, 1914, Orange County, Donoiuay, J., presiding. Petition denied. The petitioner excepted. The opinion states the case.

Heaton, wherein the stock dividend in question was treated as income belonging to the remaindermen. Heard on an agreed statement of facts at the September Term,, 1914, Washington County, Miles, J., presiding. Judgment affirming the decree of the probate court. The appellant excepted. The opinion states the case.

General Assumpsit. Plea, the general issue. Trial, by jury at the April Term, 1915, Windham County, Butler, J., presiding. Verdict directed for the plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.