H. T. Seaver, R. P. Webster, And W. W. Reirden v. Lillia A. Lang And Trustees

• Decision Date: 19 November 1918
• Parties: H. T. SEAVER, R. P. WEBSTER, AND W. W. REIRDEN v. LILLIA A. LANG AND TRUSTEES
• Court: Vermont Supreme Court

104 A. 877

92 Vt. 501

H. T. SEAVER, R. P. WEBSTER, AND W. W. REIRDEN v. LILLIA A. LANG AND TRUSTEES

Supreme Court of Vermont

November 19, 1918

January Term, 1918.

ACTION OF CONTRACT on a land contract. Plea, the general issue. Trial by jury at the March Term, 1917, Orleans County, Fish J., presiding. At the close of all the evidence both parties moved for a directed verdict, and the court directed a verdict for the plaintiffs. The defendant excepted. The opinion states the case.

Judgment reversed and cause remanded.

Williams & Smith and Frank D. Thompson for the defendant.

Present WATSON, C. J., HASELTON, POWERS, and TAYLOR, JJ.

OPINION

POWERS

In the spring of 1914 the late Frank Lang held title to certain property in Barton. It consisted of a village lot and residence thereon occupied by him and his family, called the home place; a barn on the Fair Ground near by, called the Holder barn, and a pasture called the Brown pasture. He also owned two valuable horses, one a mare called Delisle, and the other a stallion called Childs. This property was all mortgaged to the Barton Savings Bank & Trust Company to secure Lang's debts to the amount of over $ 4,000. He owed other notes and bills to various parties, on some of which suits had been brought and his equity in the property mentioned or some of it attached. With his affairs in this situation, he accepted a position in Minnesota, and went there, leaving his wife and family in Barton living in the home place. Soon after his departure other attachments were put onto his property, and finally Mrs. Lang, the defendant set herself to the task of straightening out the tangle in her husband's affairs, and saving what she could out of the property. After some discussion, the following arrangement was entered into between the plaintiffs and Mrs. Lang, who, as evidence tended to show, acted upon the authority and approval of her husband: Mr. Seaver took the Brown pasture at $ 1,250, and he and Mr. Reirden, took the Holder barn at $ 1,500; both these sums being paid partly in money and partly in cancelled debts against Lang. The money involved was used to pay other debts against him. These two properties were conveyed by deed and the transactions were final. Then Lang and his wife deeded the home place to Seaver, who immediately conveyed a third interest therein to each of the other plaintiffs. The latter, having paid or assumed the other Lang debts, gave Mrs. Lang a land contract for the home place, which she had occupied all the time, and which she continued to occupy until her death as hereinafter stated. The foregoing arrangement was one transaction only; the deed of the home place and the contract to Mrs. Lang being successive steps in it. The contract was nothing more than an arrangement to secure the amount specified as the purchase price therein. By its terms the plaintiffs agreed to sell to Mrs. Lang, and she agreed to buy, the home place for $ 4,492.83, payable on demand with interest annually. The plaintiffs agreed therein that on payment of this sum and compliance with her other agreements therein, they would convey to Mrs. Lang the premises by warranty deed. The amount specified as the purchase price was the remainder of the Lang debts, paid or assumed by the plaintiffs, as they then figured it.

Lang died in 1916, and left an insurance, $ 1,500 of which was payable to Mrs. Lang. This suit is brought for the recovery of the sum specified as the purchase price in the land contract, and the insurer is summoned as trustee. Mrs. Lang died after the trial below, and her administrator is here defending. The declaration was in the common counts, and the plea was the general issue. The court below ordered a verdict for the plaintiffs, and the case is here on the defendant's exceptions.

When the land contract was offered in evidence, the defendant objected on the grounds that it was an executory contract, merely, and that it was under seal, for each of which reason recovery could not be had under the common counts. On the first of these propositions, the defendant cites Hemenway v. Smith, 28 Vt. 701. Just what the Court decided in that case was this: That the plaintiff there could not recover the amount which the defendants agreed to pay him for an assignment of an executory contract of purchase of the so-called Gould farm, under a declaration containing only the general counts there used. But it appears that these were only three in number, one for money had and received, another for use and occupation, and the third for money lent and accommodated. None of these was adapted to a case of the kind then at bar. So the decision goes no further than the one in Wertheim v. Fidelity & Casualty Co., 72 Vt. 326, 47 A. 1071. The origin and growth of the socalled common counts form an interesting chapter in the development of our system of pleading; but it is enough here to say that new counts have been from time to time added to the common counts until there is now in use, in some parts of the State at least, a printed form containing a general count adapted to a case of this kind. It must be admitted that this declaration did not originally contain any such count. But this defect was remedied by an amendment.

In this connection, it is further urged that a vendor's remedy at law in a case like this is an action for damages for the breach of the executory contract, and that the sum specified cannot be recovered, but only damages represented by the difference between the purchase price and the value of the premises. There are cases apparently holding this doctrine. So far as these are at hand, they are cases where the vendor retains the possession. In such cases the rule just referred to may afford compensation. But where the vendee takes and retains possession, and the promise to pay is positive and absolute, and the position of the parties is unaffected by foreclosure or other proceedings, recovery of the purchase price should be allowed. To refuse it would be to ignore the plain terms of the engagement. The contract before us contains a direct and absolute promise to pay. In such a case we assert the rule approved in Waite v. Stanley, 88 Vt. 407, 92 A. 633, taken from Hansbrough v. Peck, 5 Wall. 497, 18 L.Ed. 520. When Mrs. Lang defaulted, the plaintiffs had several remedies available: They could proceed in equity, as was done in Paine v. McDowell, 71 Vt. 28, 41 A. 1042; they could bring ejectment, as was done in Reynolds v. Bean, 91 Vt. 247, 99 A. 1013; they could sue for general damages, as was done in Allen v. Mohn, 86 Mich. 328, 49 N.W. 52, 24 Am. St. Rep. 126; or they could sue for the purchase money. See Arbuckle v. Hawks, 20 Vt. 538.

Assuming that the plaintiffs had done all that the contract required of them, there was nothing for the defendant to do but pay the money. Under our simplified system of pleading, if not before, this could be recovered under an appropriate general count. Such a count was allowed to be filed as an amendment to the original declaration. No question as to the sufficiency of this new count is before us, as the only exception saved was to the action of the count in allowing it to be filed. And in this there was no error. G. L. 1796.

Nor can the contention be sustained that the damages are to be measured by the difference between the value of the premises and the purchase price. The damages are compensatory. Whatever the rule might be when a purchaser surrenders the possession or the vendor secures it, when, as here, the purchaser holds the possession and manifests a purpose to continue to hold it, the recovery is the amount due on the contract.

At the close of the evidence, the defendant moved for a verdict, and the motion being overruled, excepted.

One of the grounds relied upon in support of this motion is that the defendant, being at the time a married woman, and it not being provided in the contract that the home place was to be conveyed to her sole and separate use, was incapable of making this executory contract and thereby binding herself and her property.

In the consideration of the question thus raised, it must constantly be kept in mind that a married woman can make contracts and bind herself and property at law only so far as the statute authorizes her to do so. Nor should we forget that our holdings are that, when a married woman enters into a contract affecting property not held to her sole and separate use, her responsibility is to be measured by the common law and not by the statute. Rowley v. Shepardson, 83 Vt. 167, 74 A. 1002, 138 Am. St. Rep. 1078; First Nat. Bank v. Bertoli, 87 Vt. 297, 89 A. 359, Ann. Cas. 1917B, 590; Barrows v. Dugan's Estate, 88 Vt. 441, 92 A. 816; French v. Slack, 89 Vt. 514, 96 A. 6.

The determinating question then is this: Is this contract one affecting property not held to the sole and separate use of the wife within the meaning of this rule?

That the home place was not then or thereafter to become property held to the sole and separate use of Mrs. Lang is apparent; for the real estate of a wife is not so held except it be that there is some provision so limiting it in the contract, deed, or decree by which she acquires it. Ainger v. White's Admx., 85 Vt. 446, 82 A. 666. That a married woman was not, at common law, liable upon an executory contract like this, is not to be doubted. 13 R. C. L. 1281; Warren v. Castello, 109 Mo. 338, 19 S.W. 29, 32 Am. St. Rep. 669; 1 Benj. Sales, § 34. This resulted from her general incapacity to contract, under which she could not create a valid debt against herself ( Farrar v. Bessey, 24 Vt. 89), or ratify one thus attempted, after she became single. Hayward v. Barker, 52 Vt. 429, 36 Am. Rep. 762.

But under our statute (G. L. 3521) the capacity of a...