Colebrook v. Merrill

Colebrook v. Merrill.

Where there is a written contract between the parties, it is for the court to, give construction to that contract, if it become necessary, but it is for the ¡ jury to find whether the acts done, which constitute the basis of the present action, were done under that contract, or some other which was not written.

I In actions of review the statute has placed the whole subject of amending the pleadings and of admitting new pleadings, entirely within the discretion of the court.

In the trial of an action upon review, the court may, in its discretion reject or disallow a demurrer to the original declaration.

Trovek, by Colebrook against Sherburn P. Merrill, in review for “certain bank bills representing in all one hundred and fifty dollars and of the value of one hundred and fifty dollars. At this term the defendant filed a demurrer to the declaration, assigning as cause of demurrer that, the description of the bills is insufficient; which the court, in its discretion, refused to receive, and the defendant excepted. At a town meeting held in the plaintiff town on the 9th day of August, 1862, the plaintiff and defendant made the written contract, following, to wit:

“For a valuable consideration, I, SherburnR. Merrill, hereby covenant and agree to and with the selectmen of the town of Colebrook to furnish said town the sum of three thousand four hundred dollars, upon the demand of said selectmen at the rate of six per cent, interest, — (that is,) six dollars for the use of one hundred dollars for a year; and we, the selectmen of said town, hereby agree to take the money required by the town, under the votes this day •passed, of said Merrill, and to paj-him six per cent, interest for the same. And it is hereby provided that said money shall be called for and furnished in sums not less than five hundred dollars at a time. And it is understood and agreed that said Merrill shall not be required, in any case, to furnish specie under the above agreement.

S. E.

Colebrook, August 9th, 1862.

Henry E. "Wiggin, Simeon Cross,

| Selectmen of Colebrook.

On the evening of said day, the selectmen and the defendant had some conversation as to when the money would be wanted, and the defendant was told that it would be wanted soon. Defendant testfied that, thereupon he at once commenced his arrangements for furnishing the same; that he got a copy of the proceedings of said meeting that night, and sent to the Great Falls Bank with a request to furnish some money and went about the town and vicinity looking for money to meet the contract. On the 26th of the same August, the selectmen, on the defendant’s request, met him at his store, and, after some preliminary talk as to the amount of money it was necessary to raise, fixed upon the sum of $3,100, and made six notes, one for $500; two for $300 each; one for $150, payable to the de-: fendant, or bearer; one for $300, payable to one Young and one for $1,600, payable to the Great Falls Bank, all being on six months time, and signed by the selectmen in behalf of the town of Cole-brook. The defendant wished to have said notes made for the aforesaid amounts so as to distribute them for his convenience and raise the money from various sources. Defendant’s evidence tended to prove that defendant Avanted the selectmen to sign said bank-note individually as sureties, in addition to their signatures as selectmen; that they refused to do so, and that defendant then told them he would send the note to the bank as it was without their individual signatures, if they wanted he should, and if the money came they would get it, if not they would not get it, but he did not think the bank would send the money; that they thereupon told him to send on the note and if the money did not come they would get it somewhere else. There was also evidence tending to prove that defendant, during this conversation, said: ‘ ‘ This paying bounties is new business, nobody knows how it will come out, and I have risked all I am going to in that way.” Defendant testified that he took this note the same as the other notes, claiming nothing other or different in regard to it than he did as to them. Defendant sent the note to the bank and the money came on it.

Plaintiff’s evidence tended to prove that the defendant asked the selectmen if he might exchange said money for the benefit of the bank, and that they consented to the exchange. Defendant denied that he asked such permission of them, but said he told the selectmen when they first met that he was in the habit of exchanging money for G. F. bank, and did exchange their money, for their advantage, and should exchange all sent to him. On the 9th day of September, the defendant, having received the money from the bank and having exchanged a part of it, paid over to one of the selectmen $850 on the bank note. A few days after this, the defendant met another of the selectmen and paid over the balance of the money received from the bank as was then supposed by them both, but it was in this last payment that plaintiff claimed, and his evidence tended to show there was a mistake, and that the defendant did not.pay over the balance of the money in his hands received on the bank note in to $150.

On the facts appearing in the case, the defendant claimed

1st. That the construction of the contract was for the court and not for the jury; 2d. That the property to said money was in him; 3d. That if the parties, in what they did, acted under said contract, each doing and receiving what was done as a compliance with each.other’s obligation, then they are estopped from saying the contrary now, whether the same were strictly their legal obligations or not.

The court instructed the jury in substance as follows: That there were two questions for them to determine.

1st. Did the defendant pay over to the selectmen all the money obtained on the bank note, or $150 less. If he paid it all over, then the defendant was entitled to a verdict, if not — 2d. Were the bills received by him from the bank, and in exchange for those received from the bank, the property of the town wholly and absolutely; that if the jury found both of these questions in favor of the plaintiff, their verdict should be fox; the town, otherwise for the defeixdant. In the coxirse of the charge, the court remaxked that the agreemexxt required the defendaixt to x’aise the money. Did he do it ? It was for the jury to find upoxx all the evidence whether or not in obtaining the money from the bank, the defendant was acting uixder and ixx performance of the coixtraGt, or merely as the servaixt and agexxt of the town; that upoix this qxxestioix they might coxxsider the fact that he did not become himself liable upoxx the town xxote, as indorser or otherwise. Was a new arrangement made at the time defendant sent *216•the note to the bank, or did the parties understand they were acting under the written contract.

The jury must look at the evidence and see whether they did so act; whether the defendant did anything more than act as the agent of the town, and whether the town did not stand behind him in all this matter; whether the defendant could afford to do anything more than that for the six per cent., or if he could not, whether he might not have been actuated by motives of patriotism. To which instructions the defendant excepted. Verdict for plaintiff.

The questions arising on the case were reserved.

Barker, Bingham and Shurtleff, for defendant.

I. A demurrer is a perfect answer in law, and the issue is to be tired by the court. Tidds Practice chap. 31 page 665.

It is defined to be a declaration by a party that he will go no farther, because the other party has not shown sufficient matter against him that he is bound to answer, Chittys PI. Vol. 1, page 661. The court will nonsuit a party at any stage of the proceedings when it appears from the papers on the evidence that he has no case. A demurrer is as full an answer as the general issue in law and the other in fact.

' Hence in our practice a demurrer like the general issue may be filed at any time as a matter of right. The refusal of the court to receive the demurrer is cause for a new trial.

Weatherfod v. Wilson, 2 Scam. 253; Rohr v. Davis, 9 Leigh. 30; Furnis v. Ellis, 2 Brock. 14; Nye v. Wright, 2 Scam. 222; U. S. D. Vol. 5, page 553 No. 740, Ibid. p. 554 No’s 754, 756, 757, Ibid. p. 555 No’s 794, 796 and 805.

II. The questions raised in the present case are entirely different from those decided in the case reported in 46 N. H. 160. The written-contract was not used on that trial and does not appear by the reported case to have been mentioned in the case as reported, it was entirely proper that the jury should find that the understanding and agreement was between the parties. Wason v. Rowe, 16 Vt. 528-9.

Butin the case at bar the contract appears in writing clear, clem, and unambiguous, and the construction of it was purely a question for the court. The court erred in not granting the defendant’s first claim or request, and in submitting the question to the jury as it did in the second division of its charge as follows, viz.: “Were the bills received by him from the bank and in exchange for those received from the bank the property of the town wholly and absolutely ?”