Town of Grand Isle v. Kinney

• Decision Date: 03 March 1898
• Citation: 41 A. 130,70 Vt. 381
• Court: Vermont Supreme Court
• Parties: TOWN OF GRAND ISLE v. KINNEY et al.

41 A. 130

70 Vt. 381

TOWN OF GRAND ISLE

v. KINNEY et al.

Supreme Court of Vermont. Grand Isle.

March 3, 1898.

Special assumpsit by the town of Grand Isle against M. O. Kinney and others. The cause was heard upon demurrer to the declaration, and the demurrer was overruled, and exceptions of the defendants to that ruling were ordered to lie. Subsequently a new declaration was filed. Afterwards the cause was heard upon the report of a referee, defendants' exceptions thereto, and motion to recommit. The motion was denied, the exceptions overruled, and judgment rendered for plaintiff. Defendants excepted. Affirmed.

W. H. Bliss, for plaintiff.

Wilson & Hall and H. M. Mott, for defendants.

ROSS, J. 1. By pleading the general Issue, after their demurrer was overruled, and going to trial upon it, the defendants waived their demurrer. Rea v. Harrington, 58 "Vt. 181, 2 Atl. 475. Thereafter, like any case referred by consent of the parties, the declaration, upon the coming in of the referee's report, was amendable to any extent, to adapt it to the facts found and reported, provided the form or cause of action was not thereby changed. Hence we have not considered the sufficiency of the original counts of the declaration to withstand the challenge of the demurrer.

2. The defendants excepted to the refusal of the court to recommit the report to the referee, to have him receive and consider the testimony offered by them and excluded by him; and also filed exceptions to the referee's report because of his refusal to receive their offered testimony, and duly excepted to the overruling of these exceptions to the report by the court These exceptions raise the same question, namely, was the offered testimony relevant to any of the issues on trial? The issues on trial all relate to the liability of the defendants to the plaintiff upon the following written instrument, signed by them and B. B. Hyde, since deceased: "Whereas, the town of Grand Isle, in the county of Grand Isle, has. by vote and otherwise, raised the sum of $19,000 for the construction of a bridge between Grand Isle and North Hero, under and by virtue of an act of the legislature, and that the sum of $1,000 more is required in order to secure the certificate of Chas. Clark, the engineer appointed by the governor of the state, that a sufficient amount has been raised to complete the bridge according to his plan and specifications, and thereby enable the selectmen of Grand Isle to contract for the construction of said bridge: therefore, we, the undersigned, residents of Grand Isle county, while feeling assured that said bridge can be constructed for $40,000, and being interested in the construction of said bridge, and considering the same woulu be a great public benefit and convenience, hereby agree to pay to the selectmen of the town of Grand Isle said sum of $1,000, or such part of said sum as may be needed to complete the said $20,000 after the expenditure of the said $19,000, and such sum or sums as may be hereafter voted by any town in Grand Isle county, or subscribed or donated by private individuals or corporations for the same purpose." This instrument is dated "Grand Isle, Vt, Nov. 18, 1889." Among the signers are the then three selectmen of the town of Grand Isle and the three persons who contracted with the town, through these selectmen, as its agents, and built the bridge. While, in terms, the signers agree to pay the selectmen of the town, meaning such persons as should be selectmen when the payment should be required to be made, it was in law a contract with the town, and enforceable in its name. V. S. 3086; Town of Fairfax v. Soule, 10 Vt. 154. It is to be observed that the agreement to pay is unconditional to the extent of $1,000. This sum was subject to be reduced by sums thereafter voted, subscribed, or donated. This agreement must be read and considered in the fight of the law authorizing the town to build the bridge. By the act of the legislature passed in 1888, the state had appropriated $20,000 towards building the bridge, and provided that none of it should be used until the plaintiff, aided by other towns in Grand Isle county, and by contributions of individuals, had appropriated an equal amount for the same purpose, and had obtained the certificate of the state engineer that the amounts thus appropriated would be sufficient to complete the bridge according to plans and specifications prepared by him. The engineer was also to direct the method of expending the appropriations. The testimony offered, and excluded by the referee against the exception of the defendants, when condensed, amounts to an offer to show that they were not to pay anything on this contract in any event, because of several reasons: (1) That the work was to be done by the town by day's work, and not by contract, and in that way the work could be done more cheaply, and the bridge would cost less than $40,000. But the contract signed says it is given to enable the town "to contract for the construction of said bridge." (2) That it was given solely to enable the town to get the certificate of the state engineer. This is a contradiction of the plain import of the instrument. In short, it is no more than an offer to show that the instrument was a sham, or a cunning device, to be used for the sole purpose of deceiving the state engineer. (3) That the town was to raise enough by subscription or by vote of the town, so that the defendants would not be called upon to pay anything under the contract. No such agreement is included nor implied in the instrument. This is the substance of the several offers. The offer are repeated, some of them several times, and clothed in different language. They all either contradict, vary, or add to the plain import of the instrument, or tend to show that it was intended for a sham or device to cheat the state engineer. The defendants offered to establish these offers by the declarations of the selectmen of the plaintiff, made to themselves and the other signers at the time the instrument was executed. It may well be doubted if the selectmen were agents of the town for any such purpose. Folsom v. Town of Underbill, 36 Vt. 580; Underbill v. Town of Washington, 46 Vt. 767. If so, their declarations were clearly inadmissible to contradict, vary, or add to the written instrument signed by them, or to show that it was a sham or device, contrived to deceive and cheat the state engineer. Morse v. Low, 44 Vt. 561; Smith v. Burton, 59 Vt. 408, 10 Atl. 536; Gillett v. Ballou, 29 Vt. 296; Wilbur v. Prior, 67 Vt. 508, 32 Atl. 474; Conner v. Carpenter, 28 Vt. 237; Blodgett v. Morrill, 20 Vt. 509. The last two cases are to the point that the law does not allow parties to a contract to show that it was gotten up as a sham, or to deceive and defraud. None of the offers are within the well-established exceptions to the rule that parties to a written agreement cannot contradict, vary, or enlarge it; such as an independent or collateral contemporaneous agreement not intended to be, and not, a substantial part of the written agreement, or a subsequent agreement operative upon the original. These were contemporaneous with the written agreement, and, if made, inhered in and were an essential part of it, operating to make the written agreement of no validity. The referee properly excluded them, as held by the trial court. This is not an action to reform the written agreement, and the rules governing the admission of testimony in such actions have no applicability to this action.

Nor was there error in rejecting this offered testimony on the ground that the plaintiff had opened the door for its admission by...