Brown v. Aitken

Citation88 Vt. 148, 92 A. 22
Case DateOctober 14, 1914
CourtUnited States State Supreme Court of Vermont
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

92 A. 23

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...

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9 practice notes
  • Nichols v. Cent. Vermont Ry. Co., No. 161.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1919
    ...in similar situations are Grapes v. Willoughby, 93 Vt. 458, 108 Atl. 421; Seaver v. Lang, 92 Vt. 501, 510, 104 Atl. 877; Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152; Grand Lodge v. City of Burlington, 84 Vt. 202, 208, 78 Atl. 973; Van Dyke v. Grand Trunk Ry. Co., 84 Vt. 2......
  • Enequist v. Bemis, No. 1167.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 19, 1947
    ...Tolles, 66 N.H. 136, 19 A. 1092, 1093, 9 L.R.A. 50, 49 Am.St.Rep. 593; and Noble v. Googins, 99 Mass. 231, 235. See also Brown v. Aitken, 88 Vt. 148, 152, 92 A. 22, Ann.Cas. 1916D, 1152. No decisions to the contrary have been found. McDonough v. Hanger, 94 Vt. 195, 111 A. 452; Wilder v. Dav......
  • Drew v. Bowen
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 11, 1929
    ...40 Vt. 310. Though a defect of this general character may, in some circumstances, be too trivial for the law's notice (Brown v. Aitken, 88 Vt. 148, 92 A. 22, Ann. Cas. 1916D, 1152), it cannot be said that this one is. A partial failure of title is enough to give rise to a right of rescissio......
  • Cutler Co. v. Barber, No. 172.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 11, 1919
    ...Ry. Co., 91 Vt. 371, 100 Atl. 908; Ackeruan v. French, 90 Vt. 324, 98 Atl. 921; Levin v. Peck, 88 Vt. 507, 93 Atl. 256; Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152. Not even in criminal cases. State v. Monte, 90 Vt. 566, 99 Atl. 264, and cases there It is unnecessary to p......
  • Request a trial to view additional results
9 cases
  • Nichols v. Cent. Vermont Ry. Co., No. 161.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1919
    ...in similar situations are Grapes v. Willoughby, 93 Vt. 458, 108 Atl. 421; Seaver v. Lang, 92 Vt. 501, 510, 104 Atl. 877; Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152; Grand Lodge v. City of Burlington, 84 Vt. 202, 208, 78 Atl. 973; Van Dyke v. Grand Trunk Ry. Co., 84 Vt. 2......
  • Enequist v. Bemis, No. 1167.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 19, 1947
    ...Tolles, 66 N.H. 136, 19 A. 1092, 1093, 9 L.R.A. 50, 49 Am.St.Rep. 593; and Noble v. Googins, 99 Mass. 231, 235. See also Brown v. Aitken, 88 Vt. 148, 152, 92 A. 22, Ann.Cas. 1916D, 1152. No decisions to the contrary have been found. McDonough v. Hanger, 94 Vt. 195, 111 A. 452; Wilder v. Dav......
  • Drew v. Bowen
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 11, 1929
    ...40 Vt. 310. Though a defect of this general character may, in some circumstances, be too trivial for the law's notice (Brown v. Aitken, 88 Vt. 148, 92 A. 22, Ann. Cas. 1916D, 1152), it cannot be said that this one is. A partial failure of title is enough to give rise to a right of rescissio......
  • Cutler Co. v. Barber, No. 172.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 11, 1919
    ...Ry. Co., 91 Vt. 371, 100 Atl. 908; Ackeruan v. French, 90 Vt. 324, 98 Atl. 921; Levin v. Peck, 88 Vt. 507, 93 Atl. 256; Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152. Not even in criminal cases. State v. Monte, 90 Vt. 566, 99 Atl. 264, and cases there It is unnecessary to p......
  • Request a trial to view additional results

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