Baker v. Sherman

• Decision Date: 31 May 1900
• Citation: 50 A. 633,73 Vt. 26
• Court: Vermont Supreme Court
• Parties: BAKER et al. v. SHERMAN et al.

50 A. 633

73 Vt. 26

BAKER et al.

v. SHERMAN et al.

Supreme Court of Vermont. Franklin.

May Term, 1900.

Exceptions from Franklin county court; Start, Judge.

Action by Luther Baker and others against Sherman & Miller. There was a judgment for plaintiffs, and defendants except. Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, and WATSON, JJ.

George W. Burleson, Alfred A. Hall, and Henry A. Burt, for plaintiffs.

Young & Young, W. P. Stafford, and H. E Rustedt, for defendants.

ROWELL, J. This is an action on the ease for deceit in the sale of land. Plea, the general issue, and trial by jury. Verdict and judgment for the plaintiffs. The declaration originally contained but one count, which alleges that the defendants "sold and conveyed to the plaintiffs their interest in" 1,305 acres of timber land at such a price. The fraud alleged is the knowingly false representation that the entire tract was situated within a natural basin, and hounded on the east, south, and west by the crest of a certain range of mountains, and that the entire tract situated within said basin and bounds was comprised within said tract of 1,305 acres, whereas 200 acres of said lastmentioned tract lay beyond the crest of said range, and 75 acres lying within said basin did not belong to the defendants, and was not a part of the tract conveyed. The new count alleges that the defendants sold and conveyed to the plaintiffs "their interest in" that portion of lot 4 in range 6 in Jay that lies west of the crest of said range, which runs across it, at such another price, and fraudulently represented that said portion contained 55 acres, whereas it contained only about 20 acres. Neither count alleges that the defendants, or either of them, had or claimed to have any interest in said laud, or any part thereof, by possession, color, or otherwise howsoever; nor that the plaintiffs, or either of them, were induced to believe or did believe that they had. At the close of the plaintiffs' testimony, and also at the close of the testimony on both sides, the defendants moved to "strike out" the new count because their deed to the plaintiffs conveyed all their interest in lot 4 therein mentioned, except 45 acres, and therefore conveyed their interest in more than 55 acres, the number declared for, namely, in 62 acres, as it appeared that the whole lot contained 107 acres. This motion was properly overruled: (1) Because, by pleading to that count and going to trial on the issue, the defendants waived their right to object to it; and (2) because advantage could not be taken of the claimed fact in that way. It was. no more than saying that the proof did not support the count, and that therefore no recovery could be had upon it.

It appears by a special finding that the sum of $295.62 was included in the general verdict as damages "for the difference in the value of land in lot 4, range 6, as conveyed, and what its value would have been had the quantity been as represented by the defendants." After verdict, and before judgment, the defendants moved that said amount be deducted from the general verdict and excluded from the judgment, which motion the court overruled pro forma, and the defendants excepted. The motion was based upon the same claim as the motion to strike out the new count, namely, that the defendants' deed conveyed their interest in more than 55 acres of said lot, the number declared for, to wit, in 62 acres. The plaintiffs claim that the defendants sold and conveyed to them only their interest in that part of said lot that lies north or west of the crest of the mountain, and represented that that part contained 55 acres, whereas it contained less than half that number; and this is the gist of the new count, and the only ground on which the plaintiffs sought to recover in respect of that lot. It is clear from the special finding that the case was submitted on this point in accordance with the plaintiffs' claim, and that the $295.62 were given for the shortage in acreage of that part of the lot. It is no bar to the recovery of damages for this shortage that the deed conveyed land enough on the other side of the crest to make it more than up in acres, although that, if true, might go in reduction of the damages for the shortage. But the defendants did not put it on that ground at all, but only on the ground of a bar, and that only after verdict, and therefore they have no exception that raises any question concerning the construction of the deed, for their exception to the judgment as rendered does not reach back of the special finding; and the verdict, to matters not excepted to during the trial, and which it was not necessary to decide in order to render a valid judgment, but only tests the sufficiency of that finding as a part of the verdict to support the judgment as to those damages, and of its sufficiency for that purpose there can be no doubt. Farrant v. Bates, 60 Vt, 37, 11 Atl. 693; In re Hall's Estate, 70 Vt. 458, 465, 41 Atl. 508, 511.

The defendants moved in arrest of judgment, for that the declaration does not allege that the defendants, or either of them, at the time of the alleged sale and conveyance, or ever, had or owned any right, title, or interest in or to the whole or any part of the land mentioned in the declaration, and that therefore it does not appear thereby that the plaintiffs have suffered any damage. The plaintiffs claim that the testimony incorporated into the bill of exceptions is a part of the record, and can be looked into on this motion, and that that shows that the defendants did have an interest in the land. But nothing is better settled than that the testimony is not a part of the record for this purpose, and that, on a motion in arrest for insufficiency of the declaration, only the declaration itself, and the subsequent pleadings that may and sometimes do help it out, can be looked into. Harding v. Cragie, 8 Vt. 501, 508. The law of the subject is that if the declaration omits to allege any fact essential to a right of action, and it is not implied in, nor inferable from, the finding of those that are alleged, a verdict...