Dundevy v. Fenton

• Decision Date: 24 January 1908
• Citation: 80 Vt. 505,68 A. 651
• Parties: DUNDEVY v. FENTON.
• Court: Vermont Supreme Court

68 A. 651

80 Vt. 505

DUNDEVY

v. FENTON.

Supreme Court of Vermont. Windham.

Jan. 24, 1908.

Exceptions from Windham County Court; Seneca Haselton, Judge.

Action by Katherine G. Dunlevy against Edward J. Fenton for breach of marriage promise. Defendant's demurrer to the replication to a special plea of release was overruled, and be excepts. Exceptions sustained, and cause remanded.

Argued before ROWELL, C. J., and MUNSON, TYLER, and WATSON, JJ.

Butler & Moloney and H. G. Barber, for plaintiff. Robert C. Bacon and J. K. Batchelder, for defendant

MUNSON, J. The plea alleges, in substance, that the plaintiff by her deed in writing under her hand and seal released and discharged the defendant from the cause of action sued upon, and covenanted and agreed that at the next succeeding term the suit should be entered, "settled, and discontinued," and makes profert of said deed. The replication alleges in substance that the plaintiff made said supposed deed of release, and delivered it to one Garceau, on condition and in consideration that the defendant then promised that he would make and deliver to the plaintiff a like deed of release discharging the plaintiff to the same extent, and would deliver to the plaintiff the pleas prepared in the case, and would leave $500 with Garceau for the plaintiff by a time stated, and that both parties should treat such agreement as strictly confidential; and alleges further that the parties were to meet at Garceau's office at the time stated, and that Garceau was then to deliver said money to the plaintiff and said supposed deed of release to the defendant, but that said deed was not to be of any force until defendant had fully complied with every condition of said agreement; and alleges further that the terms of said agreement were made public by defendant, that said pleas were not delivered to the plaintiff, but were filed in court, and that neither the defendant's release nor said sum of money was delivered to the plaintiff, that plaintiff was at Garceau's office at the time named, and was then informed by Garceau that the defendant had not left said money as agreed, and that plaintiff waited some time without the defendant appearing, and then demanded of Garceau the return of her said supposed deed of release, but that Garceau refused to return it, and afterwards delivered it to defendant's attorneys against her protest, and that the supposed deed pleaded by defendant is not her deed of release, concluding with a verification. The replication is demurred to, and special causes of demurrer are assigned, which are, in substance that it does not answer the plea, either by a general form of denial or by a denial of any single material fact; that it advances new matter, and thereby sets forth a contract different from that staled in the plea, and so amounts to the general issue; and that it does not confess and avoid any material allegation of the plea.

The plaintiff claims that the plea is defective, in that it fails to allege a delivery of the deed of release, and that if it be held that a delivery of the deed is sufficiently alleged, the plea is double, in that it sets up a release of the cause of action and a...