Cooley v. Hatch

• Decision Date: 17 January 1917
• Citation: 99 A. 784,91 Vt. 128
• Parties: COOLEY v. HATCH et al.
• Court: Vermont Supreme Court

99 A. 784

91 Vt. 128

COOLEY

v. HATCH et al.

Supreme Court of Vermont. Washington.

Jan. 17, 1917.

Appeal in Chancery, Washington County; E. L. Waterman, Chancellor.

Bill for specific performance by Dorwin W. Cooley against Deforest W. Hatch and others. Pro forma decree dismissing the bill, and the orators appeal. Affirmed and remanded.

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

Edward H. Deavitt and Theriault & Hunt, all of Montpelier, for appellants. E. A. Ayers, of Swanton, and H. C. Shurtleff, of Montpelier, for appellee.

WATSON, J. The object of the bill is to obtain specific performance of a parol agreement for the sale of land. The bill alleges that on the 1st day of October, 1913, the defendant Hatch was, and for some time prior thereto had been, the owner in fee (subject to a mortgage to the defendant Swanton Savings Bank & Trust Company) of certain lands in the town of Highgate, this state, known as the Highgate Springs Point property, being about 10 acres, more or less; that at Highgate on the 2d day of said October, the plaintiff agreed with Hatch, through his agent, that the plaintiff would forthwith furnish him a Douglass pump and engine, erect the foundations for the same on land of Hatch not here in controversy, place the pump and engine on such foundations, connect the discharge pipe of the pump with the pipes then already installed, and the plaintiff then agreed to perform such agreement as soon as he completed a contract with the Eastern Talc Company for the construction of a railroad in the town of Rochester, this state, in which the plaintiff was then engaged, and which it was understood would be completed in two or three months thereafter, and that Hatch desired said engine and pump to be installed so that they might be used in the spring following; and that in consideration of said agreement of the plaintiff, and of an agreement for the payment of $250 in cash by him to defendant Hatch, and the removal of a cottage building from the premises in controversy to a point designated at the time on other land of said Hatch, the latter agreed to convey to the plaintiff, by good and valid warranty deed, free from any incumbrance, a certain portion of the 10-acre tract known as Shipyard Bay, described as follows: (Setting out the boundaries.) The defendants demurred to the entire bill, the only ground of demurrer specified being that the plaintiff had an adequate remedy at law. The demurrer was overruled pro forma, and the bill adjudged sufficient; the benefit of the demurrer being reserved to the defendants until the final hearing and decree. By the final decree, the bill was dismissed; with costs, pro forma, and without hearing, from which the plaintiff appealed.

The defendants rely upon the demurrer as reserved; but we think it must be overruled. The bill sets forth generally that an agreement was made for the sale of the land in question, without stating whether it was in writing or not. It was not necessary to allege that it was in writing, for this is presumed until the contrary appears. Section 1 of the statute of frauds affects only the rules of evidence, and not those of pleading. This is so held in actions at law. Montgomery v. Edwards, 46 Vt. 151, 14 Am. Rep. 618. In that case 1 Chitty's Pleadings, at page 304, is cited. There Mr. Chitty states the same rule of pleading to be true in a declaration at law, or a bill of equity. Mr. Browne states this to be the settled law of this country. Browne, St. Frauds, 622. And it was held to be applicable to a bill in equity'by Chancellor Walworth in Cozine v. Graham, 2 Paige, Ch. (N. Y.) 177.

When it is stated generally that ah agreement or contract was made, the defense of the statute of frauds may be set up by plea, as the defendants undertook to do in this case, but failed, as no claim of the benefit of the statute is made therein. Battell v. Matot, 58 Vt. 271, 5 Atl. 479. The plea alleges that the contract, which the plaintiff asks to have specifically enforced, was a contract for the sale of lands, and that it was not in writing, and that, if it was made with the agent of defendant Hatch, the authority of the agent was not in writing. It seems from the record that this plea was disregarded by the plaintiff; and it is urged by defendants that by force of chancery rule 16 the truth of the plea was admitted. This rule provides that the plaintiff shall set down a plea for hearing, or take issue thereon, within 10 days after it is filed, in default of which he shall be deemed to admit the truth and sufficiency thereof, and the bill shall be dismissed as of course. The plea was supported by the affidavit of the defendants that it was true in fact; but the affidavit did not state that the plea was not interposed for delay, nor did their counsel certify that in his opinion it was well founded in law. By rule 13 no plea shall be filed unless supported by such an affidavit, and on such a certificate of counsel. Since the plea was thus fatally defective and irregularly filed, it may well have been disregarded on that account. Central Nat. Bank v. Conn. Mut. Life Ins. Co., 104 U. S. 54, 26 L. Ed. 603; Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 13 Sup. Ct. 936, 37 L. Ed. 853.

The agreement alleged in the bill is admitted in the answer, except as to one of its terms, namely, the time when the plaintiff was to install the pump and engine, which (on the face of the...