Johnson v. Catb

• Decision Date: 18 November 1902
• Citation: 53 A. 329,75 Vt. 100
• Court: Vermont Supreme Court
• Parties: JOHNSON v. CATB.

53 A. 329

75 Vt. 100

JOHNSON

v. CATB.

Supreme Court of Vermont. Caledonia.

Nov. 18, 1902.

Exceptions from Caledonia county court; Munson, Judge.

Action by G. L. Johnson against W. W. Gate. From a judgment for the defendant, the plaintiff brings exceptions. Reversed.

Argued before HOWELL, C. J., and START, WATSON, and HASELTON, JJ.

Dunnett & Slack, for plaintiff.

May & Simonds, for defendant.

HASELTON, J. This was an action of general assumpsit. Trial was had by jury. A general verdict for the defendant was returned, and judgment was rendered thereon. The plaintiff's specification set out that he had been guarantor of a debt owed to the defendant by the firm of Gray, Howe & Stebbins, of Boston; that said firm had paid the debt; and that thereafter, in a settlement between the plaintiff and the defendant, the plaintiff had paid and allowed to the de fendant the amount of said debt by reason of, and in reliance upon, false and fraudulent representations made to the plaintiff by the defendant to the effect that said Gray, Howe & Stebbins had not paid the debt. The plaintiff's evidence tended to show that said debt had been paid by him, and that prior to said payment by him said firm had a full and complete settlement and adjustment of all its dealings with the defendant, which dealings had been considerable, and that the debt in question had been included in such settlement and adjustment; that at the time of the payment by the plaintiff the defendant informed the plaintiff that said Gray, Howe & Stebbins had never paid the debt in question, nor made any allowance for the same in said settlement and adjustment; that the plaintiff was ignorant of the payment by Gray, Howe & Stebbins, and paid the amount of said debt in reliance upon said representations of the defendant that it remained due and unpaid; that the settlement and adjustment, in which said debt was allowed by said firm to the defendant were conducted by the defendant on his part through an agent, and that the defendant himself was not present when said settlement and adjustment were made. The record shows, and the exceptions expressly state, that the case was tried upon the specffication. In charging the Jury, the court, after stating the plaintiff's claim as shown by his specification, said: "To entitle the plaintiff to recover, he must prove that the defendant said, in substance, that Gray, Howe & Stebbins were still owing him these items; that the defendant in fact guarantied such an account; that Gray, Howe & Stebbins had...