Rowley v. Shepardson

• Decision Date: 08 December 1911
• Citation: 81 A. 917,85 Vt. 266
• Parties: ROWLEY et ux. v. SHEPARDSON.
• Court: Vermont Supreme Court

81 A. 917

85 Vt. 266

ROWLEY et ux.

v. SHEPARDSON.

Supreme Court of Vermont. Windham.

Dec. 8, 1911.

Exceptions from Windham County Court; William H. Taylor, Judge.

Action for deceit by Edson E. Rowley and wife against George W. Shepardson. There was a judgment for plaintiffs, and defendant brings exceptions. Affirmed.

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

Chase & Daley, for plaintiffs.

Cudworth & Pierce, H. G. Barber, and F. E. Barber, for defendant.

MUNSON, J. The suit is for deceit in the sale of a farm. The deed contained a reservation of 500 sugar maples from the maple trees standing west of the highway running through the farm. The trees reserved were not otherwise designated or described in the deed, and were not marked. The reservation clause is given in full in the report of a former trial. 83 Vt. 167, 74 Atl. 1002, 138 Am. St. Rep. 1078. Subsequent to the conveyance to the plaintiffs, and before the bringing of this suit, all the reserved timber was conveyed, and 402 of the maple trees standing west of the highway were cut and removed by the purchaser. The plaintiffs claimed, and their evidence tended to show, that they negotiated for the farm with special reference to securing a sugar orchard of not less than 1,000 trees for use in the making of maple syrup, and that the defendant represented that there were from 1,600 to 1,700 sugar maples standing west of the highway more than one foot in diameter at the stump, and that they made the purchase and agreed to the reservation in reliance upon this statement.

The plaintiff was permitted to testify that these trees were worth from 50 to 75 cents per tree more for the purpose of making maple syrup than they were for timber. This was objected to as irrelevant, immaterial, and not a proper element of damage. As against this objection, the evidence would have been admissible in connection with evidence of the value of the trees for lumber; and evidence of this character was offered by the plaintiffs, and excluded on defendant's objection.

A witness, who testified that he was acquainted with the farm and familiar with real estate values in the vicinity, was permitted to give his judgment as to the value of the farm with from 230 to 300 sugar maples left standing on the west side of the highway, and its value on the assumption that from 1,100 to 1,200 were left standing there. It is objected that the questions were improper because of their failure to include the fact that 500 of these trees were reserved to the defendant. But the questions took proper cognizance of this fact. They were framed with reference to the condition which would exist with all the reserved timber, including the 500 maples, taken off, and the condition that would have existed after this cutting if there had been the number of maples represented by the defendant.

This witness, after testifying that he had made maple sugar and syrup, and had seen the product of this farm, was asked what the quality of this product was as compared with the quality of sugar he had known of that came from other localities. The question was objected to as calling for a comparison; but no improper comparison was made, for the witness answered: "It was a very fine quality." It was also objected to as covering the sugar made from the 500 trees reserved to the defendant; but no error can be claimed in this respect, for the trees reserved were a part of the same orchard, and were not set apart by any designation. This sufficiently disposes of like objections made to testimony of the same character received from other witnesses.

The same witness was permitted to testify that the location...