Scoville v. Brock

• Citation: 65 A. 577,79 Vt. 449
• Court: United States State Supreme Court of Vermont
• Decision Date: 10 January 1907
• Parties: SCOVILLE v. BROCK.

65 A. 577

79 Vt. 449

SCOVILLE

v. BROCK.

Supreme Court of Vermont. Washington.

Jan. 10, 1907.

Appeal in Chancery, Washington County; John W. Rowell, Chancellor.

Suit by William L. Scoville against James W. Brock. Heard on pleadings and master's report. From a decree dismissing the appeal, the orator appeals. Reversed and remanded.

The orator became of age July 27, 1894. The defendant's final account as guardian of the orator was settled and allowed by the probate court, in the orator's presence and with his approval, on July 30, 1894. The defendant was duly appointed guardian of the orator by the probate court within and for the district of Washington in this state, on September 1, 1890, accepted the trust, and continued to act as such guardian till he settled his final account. On September 19, 1890, said probate court decreed to the defendant, as guardian of the orator, certain stocks and bonds of nonresident corporations, of the face value of $7,032, as the orator's interest in his father's estate. The defendant received those stocks and bonds as such guardian, and held them till he turned them over to the orator at said final settlement. In the meantime certain of said corporations had failed, thereby rendering some of these securities worthless. It was in respect of the defendant's management of these securities that the orator complained. Among other things, the master reported: "William L. Scoville lived at Montpelier, Vermont, until he was 17 years old. He was at New Haven, Connecticut, for nearly five years, and graduated from Yale College in 1896. He lived the next year in Rutland, Vermont, having decided to study law before going to Rutland. He went from there in the fall of 1897 to Cambridge, Massachusetts, where he has ever since resided. While in Rutland he was in the office of James A. Merrill, who was the judge of the city court, acting as clerk in the office, doing the detail work and correspondence and the general small matters of the office. When he left Rutland and went to Cambridge, Massachusetts, in the fall of 1897, he entered the Boston University Law School. He went as a soldier in the Spanish War and fall of 1898 he entered Harvard Law School. He was in that school until fall of 1900, when he was admitted to the practice of the law and commenced the practice of his profession, in which he has ever since been engaged In Boston, Massachusetts. In April or May, 1902, William L. Scoville brought some papers from his house to his office to sort out and file away in such a way that should occasion arise he could readily have access to them. When he came to sort and file away the papers he found among the papers thus brought to his office were one of the certificates of stock that he had received from his guardian in the settlement made in the probate court August 1, 1894. He was at that time very short of money and he thought what hard luck it was to lose all the money these papers represented and then for the first time the thought came into his mind that possibly something could be done about it, and he proceeded at once to look into the matter. He had not up to that time known or suspected that defendant was liable, and had not known what the law was or had been as to his rights. He made an investigation in the state law library in Massachusetts, and the next day or the following day he wrote Mr. Deavitt, of Montpelier, Vermont, laying the matter before him and asked him to take any steps that might be necessary. He wrote Mr. Deavitt May 12, 1902. Up to that time William L. Scoville continued to have perfect confidence in the integrity and ability of the said James W. Brock and belief that he had properly and honestly acted as his guardian, and managed the securities in the hands of the guardian in a legal and proper manner."

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

Elbridge R. Anderson and Edward H. Deavitt, for appellant Melville E. Smilie, for appellee.

MUNSON, J. The master finds certain facts from the evidence, and leaves it for the court to say what concessions contained in the answers are available to the orator. The original bill was held insufficient on demurrer (75 Vt. 243, 54 Atl. 177) and two several amendments thereto were afterwards filed. The defendant then answered the bill and the amendments, "waiving the answer to the original bill." The orator insists that the first answer could not be waived without the express leave of the court, citing Morrill v. Morrill, 53 Vt. 74, 38 Am. Rep. 659. That, however, was an amendment interposing a further defense to the same bill, made on leave in the course of the hearing, and done by interlineation, and the decision was merely a condemnation of that method of making an amendment. In this case, a decree of the court of chancery sustaining the demurrer and dismissing the bill was affirmed in the Supreme Court and the leave of the court was given when the case came back on remand. Strictly speaking, when a demurrer to the whole bill is allowed the bill is out of court and no subsequent proceeding can be taken in the cause. This is the rule as given in 3 Dan. Ch. Pr. (1st Am. Ed.) 668. The author remarked, however, that there were cases where the court had afterwards permitted an amendment of the bill to be made, and that even after a bill had been dismissed by order, it had been considered allowable for the court to set the case on foot again. But the authority of these cases was questioned, and the author concluded that it might be considered a positive rule, liable to scarcely any exception, that after a demurrer has been allowed, the case is entirely out of court it is said, however, in Mercantile Nat. Bank v. Carpenter, 101 U. S. 567, 25 L. Ed. 815, that the rigor of this principle has since been relaxed, and Mr. Beach, in his modern Equity Practice, § 279, speaks of the rule as one that formerly prevailed. But, although the practice discountenanced by Daniel has since obtained, and is now generally established by rules of court, logically and technically the situation is the same. The orator must make out a new case, but may do this by amending the rejected bill. This being so, the defendant must be entitled to answer anew, the same as if replying to a bill new in form as well as new in fact.

The decisions point unmistakably to this conclusion. After an amendment, the defendant may demur to the whole bill, though a demurrer to the original bill has been overruled. Bancroft v. Wardour, 2 Brown's C. C. *66. He may demur, though the original bill has been answered. Cresy v. Beavan, 13 Sim. *354; Dillon v. Davis, 3 Tenn. Ch. 386, 395. He may plead, although a full answer was put in to all that was contained in the original bill. Ritchie v. Aylwin, 15 Ves. 79. He must answer all the interrogatories of the amended bill, though some of them are repetitions of those in the original bill and have been answered. Mazareds v. Maitland, 3 Madd. 66. It is apparent from these holdings that the amended bill is treated as a new bill, and the defendant's replies to the original bill, whatever they are, as dropped from the pleadings, leaving the defendant to plead anew. Otherwise he could not demur again to the whole bill, for coextensive demurrers are not allowed. Nor could he plead matters covered by his former answer, for the answer would overrule his plea. Nor would he be bound to answer interrogatories in the amended bill that he had already answered. The right of the defendant to answer anew is broadly asserted by authorities which fully recognize the modern doctrine of amendment after demurrer sustained. It is said In 1 Beach Mod. Eq. Pr. § 398, citing Bowen v. Idley, 6 Paige (N. Y.) 46, and Bosanquet v. Marsham, 4 Sim. 573, that where a complainant amends his bill after answer it is a matter of right for the defendant to put in a new or further answer to the amended bill, except where the amendment is one that cannot vary the right of the defendant; that if the substance of the bill is amended in any manner, however trifling, the defendant may put in another answer and make an entirely new defense. So the answer to the original bill and the concessions contained in it are not now available to the orator. But any material admission which the answer contains is provable, like any other documentary admission not embraced in the record of the proceeding. The substance of the orator's complaint is that the defendant was negligent in the management of the funds which he held as the orator's guardian, and thereby incurred losses for which he was legally chargeable; and that he induced the orator by fraudulent concealments and representations to approve a final account which relieved him from liability, and that the account was allowed by the probate court because of such approval; and that the decree in that behalf passed without contest and remained unappealed from because of the orator's ignorance of his rights in matters regarding which it was the defendant's duty to give him information. The original bill disclosed the existence of a decree, but contained no allegations regarding the proceedings on which it was based, and this was held insufficient on demurrer because the allegations that the orator's approval of the account was obtained by fraud were not followed by averments sufficient to carry the effect of the alleged fraud into the decree. 75 Vt. 243, 54...