Brown v. Aitken

Decision Date10 November 1916
Citation90 Vt. 569,99 A. 265
PartiesBROWN v. AITKEN et al.
CourtVermont Supreme Court

Exceptions from Franklin County Court; Fred M. Butler, Judge.

Action by Joel Brown against A. H. Aitken and another. Judgment for plaintiff, and defendants except. Affirmed.

Argued before MUNSON, C. J., and HASELTON, POWERS, and TAYLOR, JJ.

McFeeters & McFeeters, of Enosburgn Falls, for plaintiff. C. G. Austin & Sons, of St. Albans, for defendants.

POWERS, J. The action is assumpsit for money had and received, and when the case was here before (Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152), we sent it back for a retrial on the issues undisposed of by the special verdicts, which were as follows:

(1) Did the defendants' agent bargain to convey the land in question to a line westerly of the elm trees, so as to include said trees? Ans. Yes.

(2) Did the plaintiff before this suit was brought offer to pay the balance of the purchase price of the premises in question when the defendant should deliver to him a deed to the line claimed by him? Ans. Yes.

(3) Did the plaintiff vacate the premises and restore possession thereof to the defendants within a reasonable time, under the circumstances, after the claimed breach of contract by the defendants in January, 1912? Ans. Yes.

(4) Did the plaintiff demand repayment of the money paid as a part of the purchase price before the service on the defendant on March 26, 1913? Ans. Yes.

Apparently, then, when the case was remanded, the questions for consideration were: (1) Was the defendants' failure to convey all the land bargained for an essential breach of the contract? and (2) the damages.

When the trial under review began, counsel for the plaintiff made an opening statement to the jury, in which he told them what the case was about, informed them about the special verdicts, and, among other things, said to them that the plaintiff bought the place in question of Combs, the agent of the defendants, in the fall of 1911, for $1,975, and that he paid $50 then and $400 later. When this statement was finished, counsel for the defendants made a statement of what he expected to prove, and after insisting that the proof would show that the alleged breach of the contract of sale was too trivial to be essential, told the jury that he expected to show that the purchase was made October 20, 1911, that $50 was paid down, and that on November 14th the plaintiff paid $400 more on the purchase price. Nothing was said by either side to indicate that the authority of Combs to make the trade or receive the money was to be disputed; and the trial court was fully justified in understanding from the attitude of counsel that the only question to be determined was the materiality of the strip of land covered by the trade, but not included in the deed. Indeed, this was, in substance, admitted by counsel. The court carefully inquired of counsel regarding the issues, and upon receipt of their answers stated the matter thus:

"It is only a question of the legal right to rescind, and that question depends, as I understand it, wholly upon the question as to whether this strip of land was of material value—of so much value as to amount to the essence of the contract, entitling him to rescind."

To this there was no dissent.

We have been thus particular to state the circumstances under which the trial began, because they vitally affect some of the questions raised in this court.

B. F. Combs was called as a witness by the plaintiff, and testified, without objection, that in 1911 he acted as agent for the defendants, and as such agent sold the plaintiff the premises in question, and that the plaintiff paid him thereon two payments, amounting to $450. In cross-examination, the defendants sought to ask the witness about the financial condition of the defendants and the scope and limitations of his agency. This was excluded, and the defendants excepted.

Here was no error. The whole subject-matter of the witness' agency was outside the issue, so far as his being agent for the defendants in making the sale was determined by the first special verdict. Moreover, if anything regarding that agency in its scope or effect was open to litigation in the second trial, it was eliminated by the conduct of counsel by expressly and impliedly limiting the issues as hereinbefore shown. Cases are tried in court upon the issues joined by the parties, and evidence is to be received only as it bears upon those issues. Probate Court v. Enright, 79 Vt. 416, 65 Atl. 530. These issues are usually such as are made by the pleadings; but counsel may, by conduct or agreement, limit them to one or more of those, and such limitation, unless otherwise ordered by the court, will bind them and their clients throughout the trial. They amount to binding waivers of all issues not included. Asso, v. Speer, 111 Ark. 173, 163 S. W. 1188; Leonard v. N. E. Mut. L. Ins. Co., 22 R. I. 519, 48 Atl. 808; Metlen v. Oregon Short Line R. Co., 33 Mont. 45, 81 Pac. 737. They are not, in character and effect, unlike an admission of fact, which is binding, unless by leave of court withdrawn. U. S. v. U. S. F. & G. Co., 83 Vt. 278, 75 Atl. 280; Clark v. Tudhope, 89 Vt. 246, 95 Atl. 489.

Various witnesses on each side testified to the value of the strip of land here involved. John Webster, a surveyor, was one of these, and testified as a witness for the plaintiff. He said that he made a survey and plan of the Aitken premises, the ones in question, and described his plan, the location of the premises, and gave other testimony. He said he was familiar with property in East Berkshire, the village in which these premises were, but, when asked if he was familiar with the ordinary going price of property in that locality, replied that he did not know as he was in dollars and cents; that he did not know as he could say just what price lots were bought and sold for in that village. When asked if he had an opinion as to the value of the strip of land in question, he replied that he had, and, subject to exception, he was allowed to give his opinion of...

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