Tarbell v. Tarbell
| Decision Date | 10 September 1888 |
| Citation | 15 A. 104,60 Vt. 486 |
| Parties | WILLIAM J. TARBELL v. DANIEL AND GEORGE TARBELL |
| Court | Vermont Supreme Court |
MAY TERM, 1887
Trial by jury, December Term, 1886, WALKER, J., presiding. Verdict for the plaintiff. See Tarbell v. Tarbell, 57 Vt 492. Motion for new trial.
Petition dismissed with costs.
The defendants moved in arrest of judgment for alleged defects in the second count, in that it did not allege that the costs and expenses in the King suit were ascertained and notice of the amount given to the defendants and demand made therefor.
This count set out the fact of King's claim and suit against this plaintiff, notice thereof by the plaintiff to the defendants, request to defend, neglect so to do, result in favor of King, defence by this plaintiff, costs and expense thereof; to wit, $ 1,000, and payment by this plaintiff which he claimed with the value of the land.
The defendants in their brief admit their liability for the land, and that they undertook by force of their covenants to repay all costs, loss and expense the plaintiff might be put to resulting from any failure of the title, but claim they were entitled to notice of the amount thereof, and therefore an averment of notice was necessary, and this on the ground that the matter was peculiarly within the knowledge of the plaintiff.
The rule is that when actual notice of any fact to the defendant, or special request, is, either by the terms or the nature of the contract, the condition of his liability, such notice, in the one case, and such request in the other, is of the gist of the action, and must therefore be specially averred in the declaration. Gould's Plead. 3d ed. chap. 4, s. 15, and authorities in note y. The gist of the action is that without which there is no cause of action. Gould, chap. 4, s. 12. The gist of the action in this case was the breach of the covenants of ownership and to warrant and defend. The distinction between the cases cited by the respective counsel is well expressed by ROYCE, J., in Sylvester v. Downer, 18 Vt. 32:
The warranties in this case were absolute, not conditional. In case of a guaranty that a demand against a third person is or shall be good and collectible, the condition is implied that the person taking such guaranty shall use all reasonable diligence to collect the demand of the debtor, therefore a declaration upon such guaranty must aver notice to the guarantor that proper efforts have been made to collect the demand from the debtor, and that they have proved unavailing, as was held in Sylvester v. Downer, supra. But where the undertaking is an absolute guaranty for another, it is unnecessary to aver notice of failure of performance on the part of the other. Williams v. Granger, 4 Day 444; Lent v. Padelford, 10 Mass. 230. The cases are cited by the defendants where the promise was to pay taxable costs, and where it was held that the amount being peculiarly within the party's own knowledge, notice of the amount must be averred, as in Wright v. Smith, 19 Vt. 110. In those cases it may well be regarded that notice of the amount on account of peculiar knowledge is a condition of liability implied from the nature of the contract, and therefore is of the gist of the action as much as the promise and breach are. The defendant had assumed nothing except to pay when the amount was determined. In the case at bar the defendants had covenanted to warrant and defend. This covenant was broken. From this breach damages arose, consisting of the value of the land, and, as an incident, the cost and expense of doing that which the defendants had assumed as a primary obligation. We fail to see anything in the nature of the contract implying that notice should be a condition of liability. No case is cited, and I have found none where it was so held. The established precedents contain no averment of the kind here claimed to be essential. In the numerous cases for breach of covenants in deeds, in this jurisdiction and elsewhere, involving the question of right to include this element of damages, I find but one where the report shows expressly what the averment was as to notice and where the question of the necessity of such averment was pointedly raised as here, and there the decision was that costs of defence and counsel fees are recoverable although not specially stated in the declaration. Richert v. Snyder, 9 Wend. 416, 417. SAVAGE, J., said: In many of the cases where it was held that costs and expenses of defending the title in another suit were recoverable as an element of damage, the fair implication is that the declaration contained no averment of notice and demand. As a specimen, see Pitkin v. Leavitt, 13 Vt. 379. WILLIAMS, Ch. J., there says: "As to the legal costs and expense in the action of ejectment, the case of Smith v. Compton, 3 Barn. & Adol. 407, is a very decisive authority, not only that there may be a recovery on the covenant when no notice had been given of the former suit in ejectment, but also that the recovery should be for the necessary cost and expenses in that suit, as well as for the value of the land." We hold that recovery as claimed may be had under the second count.
Another cause alleged in the motion in arrest is that the jury allowed "a large amount of damages or interest to the plaintiff which were not warranted by the law or evidence."
The action is covenant in two counts, the first being for breach of the covenant of ownership of a piece of land described the second, for breach of the covenant to warrant and...
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