Olmstead v. Abbott

The opinion of the court was delivered by Taft, J.

The orator alleges that in February, 1879, the defendant agreed that if he, the orator, would buy the Smith mill site, erect a shop and build a dam thereon, he would give the orator the right to flow his* the defendant’s, land situate on Hall’s brook above the site, if it was necessary to do so in order to give sufficient head and power to propel the orator’s machinery ; that relying upen said agreement he did buy the site and erect a mill in the summer of 1879 ; that afterwards, in Au-' gust of that year, as he was about to build the dam, the defendant claimed compensation of the orator for the right of flowage, and the orator agreed to pay it and an agreement was entered into as to the manner of ascertaining the amount to be paid, by submission to parties then agreed upon, the details-of which it is unnecessary to state; that the defendant refused to go on with the submission aud no award was made ; and further alleging that a dam with flash boards six feet in height‘was necessary to give the requisite flowage. iSuch in substance are the main *287 allegations of the bill. The report of the master in its findings -of facts sustains the orator, in his claims as to the arrangement originally made between him and the defendant, and shows that prior to the arrangement between them in August, 1879, the orator, relying upon the agreement of the defendant, had pur-chased the site and erected a shop at a cost of about one thousand dollars ; that upon claim being made by the defendant that the orator should pay for the flowage right, the orator did agree to pay the damages caused by a dam five feet in height, and it was then agreed that he should have the right to flow the defendant’s land by a dam of that height; and that the damages so caused should be ascertained in the manner alleged in the bill; that the orator, relying upon the arrangement thus entered into, built the dam at an expense of two thousand dollars and placed machinery in the shop and had thus invested all his property in the enterprise. No objection had been made by the defendant to the flowing of his land by the orator prior to the completion of the dam and shop. At the time of the negotiation by the parties in August, 1879, there was no attempt by the defendant to revoke the license theretofore given the orator to flow the land. The controversy was whether the flowage should be pajd for, and resulted in the modification of the original agreement in two respects, viz.: the extent to which the land should be flowed, and that it should be paid for, and in connection with the latter n, provision for ascertaining the amount to be paid. Under the agreements as above stated the orator bought the Smith mill site, expended several thousand dollars upon the dam and buildings, and was ready to operate his manufactory, when the submission to arbitrators of the matter of damages having failed, the defendant revoked the license he had given, or sold, to flow his land, and to the claim of the orator that the agreement in respect thereto should be specially enforced insists that it was within the statute of frauds, the subject thereof being an interest in lands. ¥e think that at the completion of, the dam it was too late for the defendant to revoke the license he had given the *288 orator. Upon the faith of it the latter had purchased real estate, had improved it in connection with his other lands, had built upon it a shop and dam at great expense, all of which will be substantially lost to him, unless the agreement is enforced. A refusal to carry out. the agreement though resting in parol is-considered a fraud of that kind which gives a court of equity jurisdiction and power to decree specific performance as the only way in which the orator can have adequate redress. It-is a. fraud practiced under pretence of an agreement, but there is such a part performance, that the case is taken out of the statute. Meach v. Perry, 1 D. C. 182; Hall v. Chaffee, 13 Vt. 150 note; Adams v. Patrick, 30 Vt. 516 ; Griffith v. Abbott, 56 Vt. 356 ; Holmes v. Caden, 57 Vt. 111 .

It is said by the defendant that the original license was given in such indefinite terms, that is; the orator might flow the defendant’s land if it was necessary to do so in order to give sufficient head and power to propel the orator’s machinery, that a court of equity would not decree specific performance. Conceding this to be the true rule where the terms of a license are indefinite, the agreement of the parties in August, 1879, rendered certain what was before uncertain, for at that time it was agreed that the flowage should be by a dam five feet in height.

The defendant claims that the verbal agreements made in 1879 were merged in the written contract of 11 June, 1880. If it were true, it would perhaps bar a decree for the orator. The parties had failed in their attempt to ascertain by arbitration the amount of damages to be paid by the orator, for flowing the defendant’s land ; it was then too late for the defendant to revoke his license; the written contract was entered into as a temporary arrangement of the difficulty, and by it the orator did not lose his rights which he acquired under the parol agreement to flow the defendant’s land. The contract affected and had reference only to the damages resulting from the flowing,, not the right to flow. The orator is entitled to relief irrespective of the questions of duress, and payment under protest, and these *289 questions are not considered by us. Nor do we deem him guilty of unreasonable delay in bringing suit for a specific performance of the contract, under the circumstances detailed in the master’s report. All reasonable means should be taken to avoid litigation such as this and temporary arrangements entered into in such cases often result in becoming permanent.

The argument that the orator has not performed enough under the contract to entitle him to a decree merits no consideration. It would be difficult to find a stronger case in this respect.

It is objected by the defendant that there is no allegation in the bill that the orator accepted the proposition of the defendant, and therefore was under no obligation to him, to go on and erect the mill and dam, but the orator does allege that relying upon the promises and agreements of the defendant, not that he ac. cepted the proposition and agreed to erect the mill and dam, but that he actually did build the dam and mill. "We think an allegation that he accepted the defendant’s proposition and agreed to build the dam and mill was rendered unnecessary by the one that, relying upon the defendant’s promises, he did build them. The report shows an absolute acceptance by the orator of the defendant’s proposition, and we should have no hesitation in allowing an amendment of the bill in that respect did we deem it necessary, but an allegation that he executed the contract implies an acceptance.

The orator alleges that he was to have such right of flowage as was necessary to give sufficient head and power to propel his machinery. It is claimed that the allegation is not sustained by the facts found by the master. The report shows that at the time of the negotiations in August, 1879, the extent of the flow-age permitted by the original license was modified by an agreement that the orator should have the right to flow the defendant’s land by a dam five feet in height. The bill therefore alleges one right, and the report shows another.

The orator must recover, if at all, upon the case made by the bill; neither the answer, special prayer for relief, nor the proofs *290 can aid him to recover upon a case nbt madeby the bill. Thomas v. Warner, 15 Vt. 110 ; Barrett v. Sargeant, 18 Vt. 365 . Upon the bill as drawn the orator cannot recover, but the facts found present a case entitling him to relief, and it can be granted him, if the bill is amended by adding an allegation of that part of the contract in respect to the right of flowage by a dam five feet high, as stated in the master’s report. As to the right and practice of the court to permit amendments under the circumstances as shown in this case, see the late cases of Harrington v. Bacon, 57 Vt. 644 ; Dwinnell v. Bliss, 58 Vt. 353 ; Hopper v. Dyer, 59 Vt. 477 ; Still v. Buzzell, 60 Vt. 478 .

The orator cannot prevail except upon an amendment to the bill as above indicated. The amendment should be permitted upon such terms as the Court of Chancery deems just and reasonable.

The decree is reversed and cause remanded with mandate in accordance with above opinion.