Brainard v. van Dyke

• Decision Date: 27 May 1899
• Citation: 71 Vt. 359,45 A. 758
• Court: Vermont Supreme Court
• Parties: BRAINARD v. VAN DYKE.

45 A. 758

71 Vt. 359

BRAINARD

v. VAN DYKE.

Supreme Court of Vermont. Essex.

May 27, 1899.

Exceptions from Essex county court; Taft, Chief Judge.

Action by Flora Brainard against Thomas H. Van Dyke. From a judgment overruling defendant's demurrer to the complaint and sustaining plaintiff's replication, defendant brings exceptions. Reversed.

Bates, May & Simonds, for plaintiff.

Henry C. Ide and Drew, Jordan & Buckley, for defendant.

START, J. The negligence set forth in the declaration consisted in the defendant's placing dynamite in a hot oven, situate in a dwelling house where the plaintiff was in the discharge of her duties as the defendant's servant, with his knowledge, without notifying the plaintiff of the dangerous character of the dynamite. It Is Insisted by the defendant that the declaration is insufficient, in that it is not alleged therein that the plaintiff did not know of the dangerous character of the dynamite. If the plaintiff knew of the dangerous character of the dynamite, she lost nothing by reason of the defendant's neglect to inform her of its dangerous character, and, without an allegation of want of knowledge on her part, she does not show such facts as cast a duty upon the defendant for a breach of which an action can be maintained.

It is alleged in the declaration that the defendant did not notify the plaintiff of its dangerous character, but this does not negative knowledge on her part. This might be true, and the plaintiff have knowingly remained in a place of danger and assumed the risk of doing so. It is further alleged in the declaration that, without any fault of the plaintiff and wholly by the negligence of the defendant, the dynamite exploded. This averment relates only to the cause of the explosion, and does not negative knowledge on the part of the plaintiff. It simply shows that the dynamite exploded without the fault of the plaintiff.

The defendant's third plea alleges that the defendant delivered and paid to the plaintiff, and the plaintiff accepted and received from the defendant, the sum of $100 in full satisfaction and discharge of all grievances set forth in the declaration. The replication to this plea alleges that the supposed payment and settlement of the $100 set forth in the plea wore had and obtained from her (the plaintiff) by the unlawful imprisonment and fraud of the defendant. The pleader evidently Intended to allege that the plaintiff was induced to receive the money and the settlement obtained by the unlawful imprisonment of the plaintiff and the fraud of the defendant. Assuming that such is the fair meaning of the replication, we think it is defective, in that it does not set forth the facts and circumstances constituting the fraud. When a party seeks to avoid the effect of an alleged accord and satisfaction by reason of fraud, it is not enough to say that the accord and satisfaction were procured by the fraud of the other party. He must go further, and set forth the facts which constitute such fraud as will render the fraud and satisfaction inoperative and voidable. The evidence and legal conclusions should not be set forth, but the substantive facts constituting the alleged fraud should be shown by the replication, and their effect left for the consideration of the court. 7 Enc. PI. & Prac. 247. Whether the fraud be alleged in the declaration, plea, or replication, it is essential that the facts and circumstances constituting it should be set out clearly and concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer. 5 Enc. PI. & Prac. 687. Fraud is a conclusion of law from facts stated and it is a well-settled rule of pleading that facts, and not legal conclusions are to be pleaded. Mere general averments of fraud or fraudulent conduct of a party, without the facts, do not constitute a statement upon which the court can pronounce judgment. Id. 688. If fraud is relied on, it is not sufficient to make the charge in general terms. The defendant should not be subjected to being taken by surprise, and enough should be stated to justify the conclusion of law, though without undue minuteness. Railway Co. v. Johnston, 133 U. S. 577, 10 Sup. Ct. 390, 33 L. Ed. 687. In Wright v. Bourdon, 50 Vt. 494, the declaration was held bad for not alleging the facts and circumstances constituting the alleged fraud. Also, in Cohn v. Goldman, 76 N. Y. 284, it was held that the allegation, "in concert did by connivance, conspiracy, and combination cheat and defraud the plaintiff out of" certain goods, did not state facts sufficient to constitute a cause of action.

The replication is also insufficient, in that it is not alleged that the $100 was returned or tendered to the defendant. In this state it may be regarded as settled that, when one has received anything of value in settlement of a right of action, the contract of settlement, although obtained by duress and fraud, is a bar to a recovery at law, so long as it is not rescinded by an offer to return the consideration, in so far as it lies within his power to do so. Thus, in Town's Adm'r v. Waldo, 62 Vt. 118, 20 Atl. 325, the defendant pleaded accord and satisfaction, and the plaintiff admitted the receipt of the alleged consideration for the settlement, and sought to avoid the compromise on the ground that it was procured by the defendant's fraud, and it was held that, on discovering the fraud, he was bound to disaffirm the transaction by returning the property received. Also, in Downer v. Smith, 32 Vt. 7, it is said: "It is a common principle that when one has a right to rescind a contract, and exercises that right, he must restore the other party to the same condition that he would have been in if no contract had been made; but a defrauded party does not lose his right to rescind because the contract has been in part executed, and the parties cannot be fully restored to their former position, but he must rescind as soon as the circumstances will permit." The case of Mullen v. Railroad Co., 127 Mass. 86, relied upon by the plaintiff, is not in conflict with this holding. In that ease the plaintiff did not admit that he received the money in settlement of the alleged cause of action. He claimed that the money was paid and received as a gratuity. In the course of the opinion it is said: "It is well settled that if a party enters into a contract, and in consideration of so doing receives money or merchandise, and afterwards seeks to avoid the effect of...