Mt. Ida Sch., Inc. v. Gilman

• Decision Date: 12 January 1924
• Citation: 123 A. 198
• Parties: MT. IDA SCHOOL, Inc. v. GILMAN et al.
• Court: Vermont Supreme Court

123 A. 198

MT. IDA SCHOOL, Inc.

v. GILMAN et al.

Supreme Court of Vermont. Caledonia.

Jan. 12, 1924.

Exceptions from Caledonia County Court; Fred M. Butler, Judge.

Action by the Mount Ida School, Inc., against Daniel T. Gilman and another. Judgment for defendants, and plaintiff excepts. Reversed and remanded.

See, also, 96 Vt. 13, 116 Atl. 71.

Argued before WATSON, C. J., and POWERS, TAYLOR, and SLACK, JJ.

Shields & Conant, of St. Johnsbury, for plaintiff.

Porter, Witters & Longmoore, of St. Johnsbury, for defendants.

POWERS, J. The plaintiff seeks recovery under a contract with the defendant, Nellie Gilman, by which it agreed to take her daughter, Alene Gilman, as a pupil in its boarding school at Newton, Mass., for the year commencing September 26, 1918. The complaint is in contract and the answer is the general issue with a notice of the special defense of fraud. A jury trial resulted in a verdict and judgment for the defendant. The plaintiff alleges error.

The court below admitted evidence tending to show that the contract was induced by fraud as alleged in the notice, charged the jury that, if established, this would amount to a defense, and submitted the questions of fraud to the jury—to all of which the plaintiff excepted on the ground that fraud was not an issue under the pleadings, because the general issue alone was properly in the case.

When the defendant's answer was filed (December 9, 1919), the Practice Act (G. L. 1791) did not allow a general issue with notice of special defenses. Dernier v. Rutland Ry. Lt. & Pr. Co., 94 Vt. 187, 110 Atl. 4. A pleader could not then deny, and confess and avoid, the same allegations of the complaint. McDonough v. Hanger, 94 Vt. 195, 111 Atl. 452. The general issue had only the force of a general denial, and all affirmative defenses, like fraud, had to be set up in the answer. Burlington Grocery Co. v. Lines, 96 Vt. 405, 120 Atl. 169. But when the trial under review took place, in December, 1922, No. 72, Acts of 1921, was in force. By this, the Practice Act was so amended as to allow inconsistent defenses to be set up in the answer. So all the matters covered by the notice were available to the defendant, if properly set up in the answer—as to which no question is here made—for the amendatory act, being one that affected the method of judicial procedure, merely, and containing no clause limiting its application, had retroactive effect, and applied to this and all other actions then pending. Johnson v. Smith, 78 Vt. 145, 62 Atl. 9, 2 L. R. A. (N. S.) 1000, and cases cited.

One of the representations set up in the notice and relied upon by the defendant was that the board furnished the pupils was of the best quality. It appeared at the trial below that Miss Gilman was at the school from Tuesday until Friday, only. The defendant gave evidence tending to show that during that time the food was insufficient and of poor quality. In rebuttal, the plaintiff improved as a witness Maude Chalmers, who testified that she was a frequent visitor at the school during the year 1918-19, and had eaten meals there during that time. She was then asked as to the character of these meals, and the defendant objected on the ground that the inquiry should be confined to the time when the Gilmans were there. This objection was sustained, the testimony was excluded, and the plaintiff excepted.

The representation regarding board was not confined to any particular time or period, but applied to the whole school year. It was not to be tested by a single meal or a particular day. If, taking the year as a whole, the board was of the quality specified, it would be no defense to this action that, on occasion, it fell under that standard. So the force and importance of the testimony on this subject, given by Mrs. Gilman and her daughter, lies in its tendency to show that the board, generally, was not as represented. To meet it, the evidence offered was admissible, though it only referred to a few isolated occasions. For what it was worth, it...