Pocket v. Almon

• Decision Date: 07 January 1916
• Citation: 90 Vt. 10,96 A. 421
• Parties: POCKET v. ALMON et ux.
• Court: Vermont Supreme Court

96 A. 421

90 Vt. 10

POCKET

v. ALMON et ux.

Supreme Court of Vermont. Washington.

Jan. 7, 1916.

Exceptions from Washington County Court; Zed S. Stanton, Judge.

Action by Dennis Pocket against George H. Almon and wife. Judgment for plaintiff, and defendants bring exceptions. Reversed.

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

H. C. Shurtleff, of Montpelier, for plaintiff. Theriault & Hunt, of Montpelier, for defendants.

POWERS, J. Almon let a job to Lacasse to build a house on a lot owned by the former and his wife. Lacasse sublet the chimneys and plastering to the plaintiff at a lump sum. The plaintiff did the work called for by his contract with Lacasse. This action is general assumpsit to recover on account of that work, and the plea is the general issue. When the plaintiff offered evidence tending to show an oral promise by the defendants to pay for the work, the defendants objected on the ground that the statute of frauds prevented a recovery on such an oral contract. To this objection the plaintiff replied that the statute was not pleaded, and therefore the benefit thereof was waived. The evidence was admitted, and the defendants excepted.

There is some conflict in the cases as to the necessity of pleading the statute in actions like this. But the common-law rule was that the statute might be pleaded or availed of under the general issue, at the option of the party relying upon it. Perry Pl. 250, note; Gould, VI, 53; 1 Chitty, *480; Hotchklss v. Ladd & Co., 36 Vt. 593, 86 Am. Dec. 679. This rule is adhered to by most of the courts in this country, as is shown by the note to Owen v. Riddle, Ann. Cas. 1912D, 45, where the cases will be found collected. The conflict that may be thought to exist in our own cases on this general subject will, upon examination, turn out to be more apparent than real; at common law the rule in chancery differed from that at law. This difference grew out of the special character of the pleadings in chancery, it is said. Feeney v. Howard, 79 Cal. 525, 21 Pac. 984, 4 L. R. A. 826, 12 Am. St. Rep. 162. Though some inaccuracy of expression may be found in some of our cases, we have adhered to common-law rules and distinctions. Thus in Hotchklss v. Ladd & Co., supra, an action at law, the common-law rule above stated was approved and applied. Our other cases, Adams v. Patrick, 30 Vt. 516, Howe v. Chesley, 56 Vt. 727, Battel v. Matot, 58 Vt. 271, 5 Atl. 479, Chickering v. Brooks, 61 Vt. 554, 18 Atl. 144, and Cunningham v. Blanchard, 85 Vt. 494, 83 Atl. 469, are all in chancery. The Battel Case and the Chickering Case, taken together, express our rule in chancery. In the former it was held that, when a defendant admits the contract, and says nothing about the statute, he waives the benefit of it; in the latter that, when he does not admit the contract, he may avail himself of the statute by objecting to oral evidence of it. So in actions at law, when the contract is denied, the benefit of the statute is available without a special plea. Moreover, there is much good sense in the doctrine adopted in several jurisdictions that, where (as here) the declaration is in the common counts, or in some other form which does not disclose the real nature of the claim sued on, the statute may be availed of, though not pleaded. Hunter v. Randall, 62 Me. 423, 16 Am. Rep. 490; Boston Duck Co. v. Dewey, 72 Mass. (6 Gray) 446; Beard v. Converse, 84 Ill. 512; Panger v. Caspary, 87 App. Div. 417, 84 N. Y. Supp. 410; Taylor v. Howard, 70 Wash. 217, 126 Pac. 423.

The defendants insist that, not only was the evidence inadmissible, but the agreement shown by it is unenforceable on account of the statute. This question was raised in various ways. There is little difficulty in stating the general rule applicable to such cases. So far as present necessity goes, it is that the oral promise is enforceable if it is primary, and hot secondary, original, and not collateral. The application of this rule to a given case is a matter of some difficulty. One reason for this is the fact that the attending circumstances are of importance and must be considered. So it happens that the actual language used may in one combination of circumstances import a primary undertaking, though in others it may import a collateral engagement.

There is much support in the record of the defendants' contention that the case made is that of a collateral promise, which, being in parol, cannot afford the basis of a recovery. The attending circumstances are strongly corroborative of this conclusion. Nevertheless we cannot say that there was no evidence fairly and reasonably tending to show an original undertaking on the part of these defendants. The plaintiff gave evidence to the effect that after he made his trade with Lacasse, but before he began the work, he went to Mrs. Almon and refused to go on with the work unless his pay was assured; that thereupon Mrs. Almon said to him that, if he would go ahead with the work, they would see that he got his pay; that Mr. Almon afterwards ratified this; and that he did the work in reliance upon this promise. In the circumstances the language used tended to make out a primary liability on the part of the defendants; for, though the words used by Mrs. Almon ordinarily import a collateral agreement, the circumstances were such that the plaintiff had a right to and did understand that his was directly chargeable to the defendants. Arbuckle v. Hawks, 20 Vt. 538; Bushee v. Allen, 31 Vt. 631; Whitman v. Bryant, 49 Vt. 512; Greene v. Burton, 59 Vt. 423, 10 Atl. 575.

If it be true, as claimed, that the plaintiff himself also gave testimony from which a collateral promise only could be found, it does not neutralize the effect of this evidence. It only makes a jury question of it, and leaves it for them to say which statement they would accept.

This court cannot weigh the evidence or review the discretionary ruling on the motion to set aside the verdict. To do the former would be...