Gibson v. Wheldon

• Decision Date: 10 May 1909
• Citation: 82 Vt. 175,72 A. 909
• Court: Vermont Supreme Court
• Parties: GIBSON v. WHELDON.

72 A. 909

82 Vt. 175

GIBSON

v. WHELDON.

Supreme Court of Vermont. Brattleboro.

May 10, 1909.

Exceptions from Windsor County Court; William H. Taylor, Judge.

Action by Harriet E. Gibson against Benjamin F. Wheldon. Judgment for plaintiff, and defendant excepted. Affirmed.

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

Stickney, Sargent & Skeels, for plaintiff. Butler & Moloney, for defendant.

HASELTON, J. This is an action of assumpsit. The common counts and a special count were joined. The trial was by jury. A verdict for the plaintiff was returned, and judgment was rendered thereon.

The special count alleged a contract between the plaintiff and the defendant, by which the defendant was to furnish the plaintiff, upon her land in Shrewsbury, 400 cords of pulp wood, to be drawn by her to the railroad station at Mount Holly, and to be delivered by her on board the cars there, This count alleged that for such drawing and delivery the defendant was to pay the plaintiff $1.50 per cord. The count further alleged readiness at all times on the part of the plaintiff to perform and fulfill under the contract, and the refusal of the defendant to permit her so to do. The plaintiff in her declaration claims as damages the profits which she would have derived from the performance of the contract had she been permitted to perform. The contract relied upon by the plaintiff was contained in a deed given by her to the defendant, and accepted by him, conveying to him the pulp wood standing on the land referred to. This deed was received in evidence, under objection and exception on the ground of variance. The variance pointed out is in this clause of the deed: "This deed is given and accepted with the further agreement, that said grantor is to be allowed to haul said pulp wood to the railway, and there deliver on board cars at a rate of $1.50 per cord for such hauling and delivery, if same is done at times and in amounts satisfactory to grantee." But the declaration alleges that the defendant would not permit the plaintiff to perform, and that the defendant had the pulp wood drawn by another; and so the clause just quoted, and any reference to it, were properly omitted from the declaration in this action. The clause of the deed above quoted relates only to the time and manner of drawing. It did not give the defendant the right to refuse to let the plaintiff draw the wood at all, for the contract, as appears by the deed, fixed a time within which the wood was to be cut and drawn, and gave the plaintiff the right to do the drawing. By alleging, in effect, the absolute refusal of the defendant to let her perform at any time or in any manner, the plaintiff relieved herself from the necessity of setting out the provisions of the contract as to when and how the drawing should be done. Allen v. Lyman, 27 Vt. 20; Allen v. Goff, 13 Vt. 148; Tempest v. Rawling, 13 East. 18. Were the plaintiff suing to recover the contract price for the drawing of the wood, it might be necessary for her to allege, not only that she had drawn it, but that she had drawn it at times and in amounts satisfactory to the grantee. For the drawing at such times and in such amounts might be a condition precedent to her right to exact payment of the contract price from the defendant. In that view it would be a part of the consideration moving from her, and so in such case would need to be alleged. However, the distinction between such supposed case and the case at bar is sufficiently clear.

No claimed variance other than that already treated of was pointed out in the county court, but it was there further objected that: "The details, as stated, vary, as shown on the face of it." This objection designated nothing, and since a comparison of the declaration with the contract discloses no such variance as is "material and substantial, affecting the right of the matter," no consideration is, nor can be, given to this general objection. P. S. 1986; Dano v. Sessions, 65 Vt. 79, 26 Atl. 585; Holdridge v. Holdridge's Estate, 53 Vt. 546; Morey v. King, 49 Vt. 304; Hills v. Marlboro, 40 Vt. 648.

The plaintiff's evidence tended to show that from time to time she asked the defendant to let her begin drawing the wood, and that he put her off on the ground that he was not ready and had no cars ready. Her evidence further tended to show that she owned a good team for the work, and that she had arranged with a neighbor, who had several teams, for assistance in the work to any extent required. On August 11, 1903, after the contract, which was made in April, 1903, the defendant wrote the plaintiff the following letter: "I expect William Wilkins will begin to draw the wood next week. I hope you will do all you can to help it along as I paid you one hundred dollars more than any one else offered you. I pay him $1.25 and please do not tell him that I agreed to give you $1.50. I told him you had a right to draw some of it and I don't think you will have any trouble about it. I think he don't expect to draw only on wheels with two teams." The clause as to the $100 had reference merely to the price paid for the pulp wood. The plaintiff's evidence tended to show that on the day when this letter was written, but after it was written, she saw the defendant about the drawing of the wood, and that the defendant then told her what he had written, and that she told him that "she was ready and anxious to perform her contract and draw the wood," and that she then "objected to his...