Bradley v. Phillips

Pleading. Common Counts in Assumpsit. Evidence. Charge. Where a contract has been so far performed that nothing remains to be done thereunder but to pay money, the common counts in assumpsit will lie for the recovery of the sum to be paid. Thus, where neighboring land owners, having trespassed and cut timber each on the lands of the other, agreed to settle by paying each to the other at a specified rate, and one paid, but the other refused, it was held that the common counts would lie for the unpaid sum. Plaintiff in opening introduced evidence tending to prove that defendant promised to pay for all logs cut on plaintiff’s land. The defendant introduced evidence tendiug to prove that he promised to pay for what he had cut on plaintiffis land, but that a part of the logs were cut before plaintiff had title. Plaintiff in rebuttal in trodueed evidence tending to prove that defendant promised to pay for all logs cut north of a certain line which was plaintiff’s south line. The court in effect left it for the jury to say what the contract was, and charged that if they found it in accordance with plaintiff’s evidence, plaintiff was entitled to recover, Held, no error.

General Assumpsit. Plea, general issue, and trial by jury, June Term, 1879, Dunton, J., presiding. The plaintiff introduced in evidence deeds to himself, dated 1870 and 1871, of a tract of wild land in Sunderland, and testified that in the winter of 1875-6 his workmen, being then engaged in cutting timber thereon, cut, as he believed, about five hundred spruce logs, on the adjoining land of the defendant, lying-south of the plaintiff’s south line, which was identical with the line of the ninth range of lots in said town ; that in the following spring, the defendant threatened to bring an action therefor, whereupon the plaintiff told him he would pay him $200, or at the rate of forty cents per log, and the defendant, in consideration thereof agreed to pay the plaintiff at the same rate for any logs that he or his workmen had cut on the plaintiff’s land, but denied having cut logs on the plaintiff’s land. The plaintiff then introduced evidence tending to prove that the defendant cut about seven hundred and forty-eight logs north of the line on the plaintiff’s land in the fall of 1871, and rested. The defendant then introduced evidence lending to prove that the plaintiff cut a little more than six hundred logs, but that it was agreed to call it six hundred ; that $150 of the $200 was agreed on as compensation for the logs, and the remaining $50 for the defendant’s trouble in the matter ; and that the defendant, although he promised to pay at the same rate for what logs he had cut on the plaintiff’s land, at the same time said he had not cut any. The defendant also introduced evidence tending to prove that he never cut but two hundred and forty logs in that immediate vicinity, that they were cut on land claimed to be owned by one Elwell, and that he paid Elwell for them. He introduced Elwell as a witness, who testified to the same effect and that a part of the logs were cut on land that he owned south of the line, and the rest on land north of the line, which he surveyed in 1865, and around which he marked a line, and on which he cut a considerable quantity of timber. The plaintiff then introduced evidence tending to contradict the testimony of Elwell, and to prove that at the time of the payment as above stated, the defendant in consideration thereof agreed to pay the plaintiff at the same rate for all logs that he or his workmen had cut north of the ninth range line, if any, “ which would be upon land then and still claimed to be owned by the plaintiff.” The defendant then moved for a nonsuit, for that the plaintiff could not recover on the common counts ; but the court ruled otherwise and permitted the case to go to the jury ; to which the defendant excepted. The defendant then requested the court to charge that if the plaintiff" could recover at all, he could recover only for what the defendant had cut north of the line, and, if Elwell’s testimony was to be believed, on land not included in Elwell’s survey. The court refused so to charge, but charged that if Elwell surveyed and took possession of land, as his testimony tended to prove, his title thereto would be superior to the plaintiff’s ; but that if the defendant agreed to pay for all logs cut north of the line, as the plaintiff’s rebutting testimony tended to prove, then, inasmuch as the plaintiff then and still claimed to own the land, as the defendant knew, the plaintiff could recover for all logs cut north of the line, whether cut on land surveyed by Elwell or not. To the refusal to charge as requested, and to the charge given, the defendant excepted. Yerdict for the plaintiff for $180 damages. contended that the plaintiff could not recover on the common counts, that the court should have charged as requested, and that the court should have charged that the plaintiff was bound by the contract as he first testified it was. On the question of the refusal to charge and of title in Elwell they cited Beach v. Sutton, 5 Vt. 209 ; Spaulding v. Warren, 25 Vt. 316 ; Swift v. Gage, 26 Vt. 224. The refusal to direct a nonsuit was without error. Nothing remained to be done under the contract, except payment by the defendant; and there was no obstacle to recovery on the common counts. 1 Swift Dig. 701 ; Felton v. Dickinson, 10 Mass. 287 ; Mattocks v. Lyman, 16 Yt. 113 ; Leeds v. Burrows, 12 East, 1. The defendant was not entitled to the charge asked for. He knew the plaintiff claimed the land; and well might agree to pay for logs cut on it, although another might also claim title to it. To have charged as requested, the court would have withdrawn from the jury evidence legitimately before them. The charge was pertinent to the evidence and without error.