Brown v. Aitken

• Decision Date: 14 October 1914
• Citation: 88 Vt. 148,92 A. 22
• Parties: BROWN v. AITKEN et al.
• Court: Vermont Supreme Court

92 A. 22

88 Vt. 148

BROWN

v. AITKEN et al.

Supreme Court of Vermont. Franklin.

Oct. 14, 1914.

Exceptions from Franklin County Court; William H. Taylor, Judge.

Action by Joel Brown against A. H. Aitken and another. Judgment for defendants, and plaintiff brings exceptions. Affirmed in part, and reversed and remanded in part.

Argued before POWERS, C. J., MUNSON, WATSON, and HASELTON, JJ., and FISH, Superior Court Judge.

McFeeters & McFeeters, of Enosburg Falls, for plaintiff.

C. G. Austin & Sons, of St Albans, for defendants.

POWERS, C. J. In the fall of 1911, the plaintiff bargained with the defendants' agent for the purchase of a house and lot in Berkshire. He paid down $50, and it was agreed that the balance of the purchase price should be paid on delivery of the deed or about January 1, 1912. The plaintiff went into possession of the proferty on or about November 1, 1911, and on the 14th made a further payment on the purchase of $400. The action is assumpsit, and is brought to recover the amounts so paid. The evidence tended to show that on or about December 17, 1911, Combs, the agent of the defendants, who lived in California, tendered the plaintiff a deed which made the west line of the premises in question run from the center of a large elm tree on the street to center of a large elm tree on the bank of the river. The plaintiff declined to accept this deed, claiming that it did not correctly describe the west boundary of the lot because the contract covered the land to the west of these elm trees and included them in the sale. The agent insisted that the defendants could not convey the trees and the land specified, because they had conveyed the land west of this lot to another, and made the boundary a line from the center of one tree to the center of the other. No other deed was ever offered the plaintiff, and he was at this time or soon after informed by the agent that no deed covering land enough to include the trees would be given. The plaintiff continued in possession of the place, and on or about January 20, 1912, the defendants sued him in general assumpsit to recover the unpaid balance of the purchase price. That suit terminated in this plaintiff's favor at the September term of Franklin county court—in October or November apparently—but the merits of the controversy were not determined. The plaintiff held possession of the place until March 26, 1913, when he delivered the key of the house to the officer who served the writ herein, who surrendered the key to the agent and then made service. The jury found by special verdicts that the contract covered all the land to a line westerly of the two elm trees; that the plaintiff, prior to the commencement of this suit, offered to pay the balance of the purchase price on delivery to him of a deed to such line; that the plaintiff vacated and restored the possession of the premises within a reasonable time after the alleged breach of the contract by the defendants; and that the plaintiff demanded the money paid on the purchase price before service of the writ in this case. After these special verdicts were returned, the court ordered a general verdict for the defendants on the ground that the payments were voluntary and the plaintiff had failed to show a substantial breach of the contract by the defendants. In other words, the court ruled that the difference between the land called for by the contract and that covered by the deed was too small to warrant a rescission of the contract by the plaintiff. To this the plaintiff excepted. Both parties excepted to various rulings during the trial, and both bring exceptions up for review; but the only questions briefed or considered are those hereinafter treated.

The plaintiff takes the position in his brief that the case shown by the record is one of rescission by mutual agreement; that the defendants accepted the key to the house, and disposed of the proferty to Metevier; and that these facts rendered immaterial all questions regarding the character of the alleged breach of the contract by the defendants and laches on the part of the plaintiff. There was some evidence tending to show a rescission by mutual agreement, though it did not go as far as the plaintiff claims. It did appear that Metevier had bought the place, and that he had been in possession since soon after the key was surrendered; but it did not appear from where he obtained his title—whether from the plaintiff, or the defendants, or some one else. The trouble with the plaintiff's position on this question is that he did not make the point below. His position at the trial did not involve the question of rescission by mutual agreement at all; and for this reason he cannot stand on the claim here.

The parties do not disagree as to the rule of law governing the point on which the trial court turned the case. It appears to be admitted that if a vendor of real estate, while the contract remains executory in whole or it part, breaks it in a material particular, the purchaser may rescind it; and if he has paid the purchase price or any part of it, he may recover it in an action of assumpsit. So one who bargains for a...