Dean v. Cass

• Decision Date: 05 September 1901
• Citation: Dean v. Cass, 73 Vt. 314, 50 A. 1085 (Vt. 1901)
• Parties: DEAN v. CASS. CASS v. DEAN.
• Court: Vermont Supreme Court

50 A. 1085

73 Vt. 314

DEAN

v. CASS.

CASS

v. DEAN.

Supreme Court of Vermont Caledonia.

Sept. 5, 1901.

Exceptions from Caledonia county court; Taft, Chief Judge.

Action by Mrs. C. E. (Annett) Dean against J. M. Cass, and action by J. M. Cass against Annett Dean. In the first case there was judgment for plaintiff, and defendant moved in arrest of judgment, which motion was denied, and judgment rendered on the verdict, and defendant excepted. In the second case there was judgment for plaintiff, and he excepted to the disallowance of certain items of costs. The first case remanded; and in the second, judgment affirmed.

Argued before ROWELL, TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

B. E. Bullard, for Annett Dean.

Harland B. Howe, for J. M. Cass.

STAFFORD, J. The declaration is upon a false warranty in the sale or exchange of a piano. The first and second counts are in assumpsit and the third is in tort Compare forms, 2 Chit. Pl. 279, 679. This is a misjoinder, and justified the defendant's motion in arrest of judgment. Joy v. Hill, 36 Vt. 333. The statute invoked by the plaintiff (V. S. § 1154) does not apply to such a ease, but was enacted to remedy a defect in the law when there were several counts, some good and some bad, all for the same cause of action, and a general verdict. Before the statute, the verdict was presumed to have been rendered upon one of the poor counts, but now upon one of the good ones. Here the difficulty is not that either count is defective in itself, but that they are of different natures, and cannot be joined. Yet, in accordance with the practice since Posnett v. Marble, 62 Vt. 481, 20 Atl. 813, 11 L. R. A. 162, 22 Am. St. Rep. 126, judgment is not arrested, but, since the plaintiff has requested it, a venire de novo is awarded.

Judgment reversed and new trial ordered, on terms that plaintiff pay defendant's costs up to the time of filing a new declaration, and take none during that time if she finally recover, except for service of the writ and entry of the action. If a new tidal is not accepted on these terms, let judgment on the verdict be arrested, with costs to the defendant in this court and in the court below. Cause remanded.

In the companion case, wherein the parties stand in reversed characters, a single question is raised, relating to the taxation of costs. This was an action upon the note given for the piano in question, and stood first upon the docket; both cases being listed for trial by jury. The...