Charles Dano, Et Al v. George C. Sessions

• Decision Date: 01 January 1893
• Citation: 26 A. 585,65 Vt. 79
• Parties: CHARLES DANO, et al v. GEORGE C. SESSIONS
• Court: Vermont Supreme Court

26 A. 585

65 Vt. 79

CHARLES DANO, et al v. GEORGE C. SESSIONS

Supreme Court of Vermont

January 1, 1893

GENERAL TERM, 1893

Action on the case. Trial by jury at the June term, 1892, TAFT, J presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The case appears in the head notes and opinion.

Judgment affirmed.

W.H Bliss for defendant.

Before TYLER, MUNSON, START AND THOMPSON, JJ.

OPINION

START

The plaintiffs offered in evidence a warranty deed of the premises described in the declaration, executed by Hiram C. Sessions, a brother of the defendant, to the plaintiffs. The defendant objected to the admission of this deed, on the ground that it did not support the declaration, and had no tendency to prove the contract set forth therein; and after the evidence was closed the defendant moved the court to direct a verdict for the defendant, on the ground that the plaintiffs' evidence did not support their declaration, but fatally varied therefrom.

It does not appear that any particular variances between the declaration and evidence were pointed out to, or passed upon by, the county court. R. L. § 1,391, provides that in cases brought by exceptions to the supreme court no question of variance between the pleadings in the suit and the evidence shall be heard, except such as it appears from the exceptions were raised and passed upon in the county court, unless such variance is material and substantial, affecting the right of the matter. Under this statute it is not enough to move for a verdict on the ground of variance between the declaration and evidence, or to except to the admission of evidence on that ground, unless the variance is material and substantial, affecting the right of the matter. The exceptions must show that the particular variance relied upon was pointed out to, and passed upon by, the county court. Holdridge v. Holdridge's Estate, 53 Vt. 546; Morey v. King, Fuller & Co., 49 Vt. 304.

The variance urged is the failure to set out that the alleged sale was effected by the defendant's procuring a conveyance from his brother, Hiram C. Sessions. The way and manner in which the defendant caused title to the premises to be conveyed to the plaintiffs, after he had induced them to purchase by fraudulently representing the number of acres of land within certain metes and bounds, did not affect the right of action or the measure of damages. The plaintiffs did not claim to recover by reason of anything contained in the deed, and it cannot be said that the claimed variance in any way affected the defendant's rights or liability.

The case of Deakin v. Underwood, 37 Minn. 98 (5 Am. St. Rep. 827, 33 N.W. 318), was an action to compel specific performance of a contract for the sale of real estate. The plaintiff alleged that the defendant made the contract by A. B. Wilgus, his duly authorized agent and attorney in fact. The contract was signed, "O. W. Underwood, by A. B. Wilgus, Agent. " The evidence showed that the authority to sell was given to the firm of A. B. Wilgus & Bros., a partnership composed of A. B. Wilgus and E. P. Wilgus. Mitchell, J., in delivering the opinion of the court, said: "It is claimed that upon this state of facts there was a failure of proof. But the material allegation of the complaint was that defendant had made this contract with plaintiff. It was not necessary to allege that it was made through an agent. It would have been enough to declare upon it generally as of the personal act of the principal. The substance of the issue was not whether the defendant had made the contract through an agent, but whether he had made it at all. Hence it cannot be said that there was a failure of proof. The most that can be possibly claimed is that there was a variance between the allegation and proof, but which could not, in this case, have misled the defendant to his prejudice, and therefore is not material."

This case was before this court at the February term, 1891, and it...