Chickering v. Brooks

• Decision Date: 22 July 1889
• Citation: 18 A. 144,61 Vt. 554
• Parties: ROXANA CHICKERING, BY HER GUARDIAN, B.D HARTSHORN, v. WILLIAM AND ROXANA BROOKS
• Court: Vermont Supreme Court

18 A. 144

61 Vt. 554

ROXANA CHICKERING, BY HER GUARDIAN, B.D HARTSHORN, v. WILLIAM AND ROXANA BROOKS

Supreme Court of Vermont

July 22, 1889

MAY TERM, 1889

The decree below, covering the whole case, was therefore warranted and is affirmed and cause remanded.

Ide & Stafford, for the oratrix.

Present ROYCE, Ch. J., ROSS, VEAZEY, TAFT, JJ.

OPINION

VEAZEY

The defendant excepted to the report of the master first because he admitted oral evidence of an agreement by the defendants to give the oratrix, Roxana Chickering, a mortgage or deed of the Harris farm as security for the $ 200 and the Morency notes and mortgage which the defendants had the benefit of in the purchase and payment of the Harris farm.

In the decree of the Chancellor this exception was sustained, and we think correctly.Oratrix's counsel claim that the evidence could not properly be excluded because the issue between the parties was whether by their arrangement in respect to this money and notes, it was a gift, loan or trust, and that the objection to the evidence was general and therefore not sufficient to raise the question of the Statute of Frauds which is now relied upon in defence.

There would be force in this position if it were not for the fact that the master understood and treated the objection to the parol evidence as being put on the ground now claimed, viz to establish a contract by parol that under the Statute of Frauds can only be established by the contract itself in writing.The master negatives the fact of a gift by the oratrix and finds by this evidence an agreement by the defendants to give a mortgage or deed as security, the master treating and substantially finding the transaction as to the money and notes was a loan to the defendants.

The real point now is, not whether this evidence was admissible on some other issue, but whether it was admissible under the defense of the Statute of Frauds.On this point the oratrix's counsel claim the statute is not available to the defendants because they did not make that defense in their answer, and cite Howe v. Chesley, 56 Vt. 727, andBattell v. Matot, 58 Vt. 271, 5 A. 479.

In the latter case, Rowell, J., after a long discussion says: "We think the true legal effect of the omission to set up the statute is as stated by Mr. Pomeroy, and by Lord Eldon in Cooth v. Jackson, 6 Ves. 12, where he says: "If the defendant admits the agreement * * * but does not say anything about the statutehe must be taken to renounce the benefit of it."'

It does not appear in this record that the defendants admitted the agreement.Indeed it would seem they must have denied it as they made the issue of a gift, which was inconsistent with such admission.No copy of the pleadings was furnished.In the absence of anything to show an admission of the contract upon which the oratrix relied, we think it was seasonable for the defendants to make the defense of the statute when oral evidence was offered to show a mere parol agreement to deed, and this by objection to the evidence on this ground.See authorities cited inBattel v. Matot, supra.

The second, third and fourth exceptions to the report are based on alleged error in the admission of evidence as to the oratrix's mental capacity when she signed the release of December 6, 1886.These exceptions were overruled by the Chancellor and we think correctly.Non-expert witnesses on both sides were allowed to state the opportunities they had for judging as to her mental capacity, and to this end, to detail their conversations with her over a period of about three years, touching the suit she had brought against the defendantWilliam Brooks, and other matters, and then to state their opinions as to her mental capacity.The testimony was admitted only on the question of mental capacity.This is in accordance with the settled practice in this State where mental capacity is in issue.Her conversations with these witnesses were not admissible for the purpose of establishing that a fact was as she stated it to be, that is, for establishing any fact embodied in the declaration and we do not understand they were allowed to have that effect by the master.Neither were they conversations at a time when she was conceded to be in full possession of her mental faculties, as in Crocker v. Chase, 57 Vt. 413.Defendants' counsel urged with more emphasis that the questions calling for the opinion of the witnesses in several instances as to the oratrix's capacity to transact business intelligently and understandingly, were improperly admitted.This point was before the court in Fairchild v. Bascomb, 35 Vt. 398; but the court only pronounced the question...