Walter Picknell v. W. J. Bean

• Decision Date: 07 October 1925
• Parties: WALTER PICKNELL v. W. J. BEAN
• Court: Vermont Supreme Court

130 A. 578

99 Vt. 39

WALTER PICKNELL v. W. J. BEAN

Supreme Court of Vermont

October 7, 1925

May Term, 1925.

ACTION OF CONTRACT. Plea, general denial. Trial by jury at the June Term, 1923, Orange County, Thompson, J., presiding. At close of all the evidence, the court directed a verdict for defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Roland E. Stevens for the plaintiff.

F G. Bicknell and H. K. Darling for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

The action is contract to recover for labor performed and money expended by one Picknell in and about the management and operation of defendant's farm from April 1, 1921, to February 14, 1922. Picknell deceased after this suit was commenced, and the same has since been prosecuted by his administrator who had leave to enter for that purpose. The administrator is herein referred to as plaintiff. The declaration contains only the so-called common counts. Defendant entered a special appearance and filed a plea in abatement and also a motion to dismiss, both based on the insufficiency of the service of the writ. After hearing defendant was permitted to and did withdraw both dilatory pleas, enter a general appearance, and go to trial on the merits of the main issue on what was treated as a general denial. The plaintiff saved some exceptions to rulings made concerning the order of hearing and disposition of the dilatory pleas. These exceptions, save one, are expressly or impliedly waived.

The court as a matter of discretion permitted defendant to withdraw his plea in abatement. Plaintiff excepted to this on the ground that he was entitled to a jury trial on the issue raised by this plea. The merits of this claim are not considered, since the claim is now abandoned. Plaintiff here invokes the aid of the rule stated in 31 Cyc. 601, that leave to withdraw a pleading will usually be given, where the other party will not be prejudiced, upon such terms as may be just and says that he was prejudiced by the court's action since no terms as to payment of costs were imposed on defendant. This question was not raised below and for that reason, under the rule frequently stated, will not be considered here.

This brings us to the only question of importance in the case, namely, whether the court erred in directing a verdict for defendant. In considering this question, the evidence must be viewed in the light most favorable to the plaintiff. Strong & Jarvis v. Oldsmobile Company of Vermont, 96 Vt. 355, 120 A. 100; Kimball v. New York Life Ins. Co., 96 Vt. 19, 116 A. 119; Capital Garage Co. v. Powell, 96 Vt. 227, 118 A. 883. If there was any substantial evidence supporting his claim, the case was for the jury. Cummings, Admr. v. Town of Cambridge, 93 Vt. 349, 107 A. 114. Where intelligent and fair-minded men may reasonably differ in the conclusion to be drawn from the evidence, it cannot be said as a matter of law that there is no evidence. Partridge v. Cole, 96 Vt. 281, 119 A. 398, 32 A. L. R. 854.

With these rules in mind, we pass to the examination of the evidence. It appeared that on October 14, 1919, the defendant leased to Picknell, his executors and administrators, "on halves," a farm in Thetford, Vermont, together with certain live stock, fowls, and farming tools, for at term commencing the 18th of the same month and ending April 1, 1921; that Picknell moved onto the farm and operated it under the lease during the term thereof; that during 1920 additional live stock was purchased by defendant and placed on the farm--more than the farm would winter; that this was done with the approval of Picknell, who agreed to and did cut hay elsewhere on shares that season to help winter the stock; that in the spring of 1921, probably in May, defendant was at the farm, and a new arrangement was agreed upon by and between him and Picknell, which was to run for one year from April 1, 1921, and from year to year thereafter; that this arrangement was the same as the one embodied in the former lease, except it included the additional stock which had been placed on the farm, Bean was to repair the house at his own expense, and Picknell was to have the right to use the horses off the farm and to sell the cows or other live stock without waiting to consult Bean when necessary. There was some talk about enlarging the barn sometime, but the evidence did not tend to show that that was to be done as part of the new agreement. Picknell wanted a lease embodying the new agreement, and told Bean that he would not carry on the farm longer unless he had such lease, and Bean agreed that he should have it. The day following the consummation of the new agreement, Bean went to White River Junction on his way home (he lived in Connecticut) to have the same put in writing by the lawyer whom he and Picknell had agreed should do that work, but the lawyer was away, and after leaving instructions to have the lease drawn, Bean continued on his journey. The lease never was executed, or drawn, and never was mentioned again by either party, so far as appears, unless Bean wrote the lawyer about it, which is doubtful. The failure of the defendant in this respect, that is to furnish a written lease as he agreed to do, was the only breach by him of the May, 1921, agreement which the evidence tended to show; and this was the only breach which it is seriously claimed entitled Picknell to abandon his contract and seek the redress here claimed.

Without pausing to consider what Picknell's rights might have been, because of Bean's failure to have the agreement reduced to writing as he agreed to do, had Picknell seasonably asserted such rights it is enough to say that he did not. So far as appears, h...