Newton v. Am. Car Sprinkler Co.

• Decision Date: 14 October 1914
• Citation: 92 A. 831,88 Vt. 487
• Parties: NEWTON v. AMERICAN CAR SPRINKLER CO. et al.
• Court: Vermont Supreme Court

92 A. 831

88 Vt. 487

NEWTON

v. AMERICAN CAR SPRINKLER CO. et al.

Supreme Court of Vermont. Windsor.

Oct. 14, 1914.

Appeal in Chancery, Windsor County; Willard W. Miles, Chancellor.

Bill by Solon S. Newton against the American Car Sprinkler Company and others. There was a decree based on the pleadings, the master's report, and the orator's exceptions thereto. Exceptions overruled, and decree that the injunction granted in the case be dissolved and the injunction bond be dissolved, when defendants pay orator $11.11, which is decreed due orator for the claimed trespasses, and his costs. Both parties appealed. Affirmed, and cause remanded.

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

Davis & Davis, of Windsor, for orator.

David A. Pingree, of White River Junction, for defendants.

WATSON, J. On June 25, 1907, Nellie E. Newton, as administratrix of the estate of Tyler J. Newton, deceased, by her deed of warranty, conveyed to Rand, Tripp, and Tennant, their heirs and assigns, certain rights and interests in the farm in Hartford, this state, of which the said Tyler J. was the owner at the time of his death, and on which he and his family then resided. Nellie E. is his widow, and the orator is his son. The rights and interests in said farm thus conveyed by the administratrix are described in the deed as follows:

"All the pine, hemlock, white birch, ash, red oak, and basswood lumber, now standing and growing on the farm of the late Tyler J. Newton, in the town of Hartford, down to six inches in diameter, four feet from the ground, excepting and reserving the top limbs and wood from said lumber, and all wood and timber standing by itself and adjoining the above-described timber on the east; said reserved wood and timber is bounded as follows, viz.: Southerly by the highway, westerly by the land of John and Frank Matthews, easterly by the lot on which abovementioned timber stands, by a straight line from an old water trough by the highway to the southeast corner of the mowing on the said Newton farm, except eight trees, together with the right to enter on said premises and cut down and remove said timber any time prior to May 2, 1912, doing no unnecessary damage."

On the 5th day of August, 1907, Tripp and Tennant conveyed to Rand all the right, title, and interest they acquired under the aforementioned deed from the administratrix, and on the 15th day of the same month Rand conveyed all his right and title, including the title he had acquired from Tripp and Tennant, to the American Car Sprinkler Company. On March 22, 1910, the administratrix conveyed said farm to the orator, reserving, from the operation of the deed, the rights and interests previously conveyed by her to Rand, Tripp, and Tennant.

At the hearing before the master, the orator introduced in evidence a plan, drawn according to scale, of the locus in quo, marked "Orator's Exhibit C." ¹ The highway and the "mowing," mentioned in the deed from the administratrix to Rand, Tripp, and Tennant, are shown on the plan. The point marked "A" on the plan indicates the location of the "old water trough by the highway," mentioned in the deed. Concerning this point there was no dispute. The "mowing" is irregular in shape, having two corners in its southeast boundary, either one of which answers the designation "southeast corner of the mowing," given in the deed. These two corners are marked on the plan, the more easterly as "B," and the more westerly as "C." The most important question before the master was whether the "southeast corner of the mowing," referred to in the deed, was at the point marked "B," as the orator claimed and as his evidence tended to show, or at the point marked "C," as the defendants claimed and as their evidence tended to show.

The negotiations resulting in the conveyance from the administratrix to Rand, Tripp, and Tennant, were commenced more than a month before the deed was given. Within that time Mrs. Newton and Rand had several interviews about the matter. At one of their meetings Mrs. Newton told Rand what timber she wanted to sell, the kinds, and size, and what reservation she wished to make, and told him that such reservation covered what timber was westerly of a straight line extending from the water trough by the highway to "the southeast corner of the mowing," except that eight large trees standing on the reservation were included in what she offered for sale. She then told him that her son (the orator) and one Truell, a real estate agent who was then present and was interested in said negotiations, would go with him (Rand) and show him over the farm and point out "the southeast corner of the mowing." Thereupon Rand, accompanied by the orator and Truell, made an examination of the timber and traveled over a large part of the timber land, in the course of which a corner in the mowing fence was pointed out to Rand by the orator or Truell as "the southeast corner of the mowing," and as the point to which a line from the water trough would extend to mark the easterly bound of the reservation. Mrs. Newton never went onto any part of the territory with any of the defendants, or pointed out to any of them the boundaries, of what she desired to reserve, but left that matter entirely to the orator and Truell. She had no personal knowledge of the particular point which they showed to Rand as "the southeast corner of the mowing," but testified that they acted as her agents in showing the timber to Rand in pointing out the boundaries to him, and that Truell continued to act as her agent throughout the negotiations (in the language of the exceptions), "until the sale was made and everything was finished up and she got her pay." On other occasions later, and before the terms of the sale were agreed upon, the same corner was shown to Tripp by the orator and Truell, and was shown to Tennant by Truell when Tennant, Rand, and Truell visited the premises.

It is a rule of law that:

"If one party refers another, on a disputed fact, to a third person as authorized to answer for him, he is bound by what his referee answers upon the occasion, as much as if the answer bad been given by himself." Aldridge v. Ætna Life Ins. Co., 204 N. Y. 83, 97 N. E. 399, 38 L. R. A. (N. S.) 343.

The master finds that:

"Only one point was ever shown to Rand, Tripp, or Tennant by the orator or Truell as marking the southeast corner of the mowing. Throughout the negotiations all of the parties understood that the point referred to, and later mentioned in said deed, as the 'southeast corner of the mowing' was the point that had been pointed out by the orator and Truell, on the different occasions above referred to, as such."

It is further found that the point marked "C" on the plan was the point which Rand, Tripp, and Tennant had a right to understand and did understand, at the time the deed from the administratrix to them was executed and delivered, to be the point referred to in that deed as "the southeast corner of the mowing." Thus it was established on the evidence that the "said reserved wood and timber," mentioned m the deed, is bounded easterly by a straight line from point "A" on the plan (place of "old water trough by the highway") to the southeast corner of the mowing, at point "C" on the plan.

The exceptions argued are here numbered the same as they are numbered in the orator's brief.

1. Mrs. Newton, being called by the orator as a witness, testified that, at the time the deed was made, either Rand or Tennant asked what was meant by "the southeast corner of the mowing," as used in the deed, and that Truell answered that it was the corner that had previously been shown to them. She was then asked in cross-examination:

"Q. As you understood it, the southeast corner was the point your son and Mr. Truell had pointed out to Rand and Tripp when they had been on there to look at it? Did you understand that the southeast corner referred to in the deed was the point showed to Rand and Tripp when they looked...