Boville v. Dalton Paper Mills

MOTION FOR REHEARING.

After the delivery of the above opinion, but at the same term, the defendant moved for a rehearing; and entry of judgment was thereupon stayed and the case entered with the court; and now, in vacation, counsel submit a brief in support of the motion.

In disposing of the defendant’s claim that the court below erred in dismissing its demurrer, two points were covered. Defendant’s brief contained the following additional point: "Aside from the matter of specifications, the docket entries and files,” "show that on no other ground could it be held that defendant’s demurrer was filed out of time. ’ ’ The defendant now suggests that the court failed to apprehend and consider its claim, orally made under this point, that its demurrer was seasonably filed because filed immediately after the court had allowed an amendment to the declaration which, upon the filing of the demurrer, it permitted to be withdrawn. The exceptions state that the defendant claimed that the paper filed was not a specification within the rule, and that consequently its demurrer was not filed out of time. This implies that no other objection to the dismissal of the demurrer was made; and it will not be necessary to consider the point now urged, for we could not properly hold that the dismissal was error on a ground not covered by the objection made.

The defendant insists that the court erred in its conclusion that there was evidence tending to show an authority in Beattie which gave admissibility to his declaration made in connection with the delivery of the writing as testified to by Boville. But after giving careful consideration to counsel’s analysis of the argument ain'd the authorities cited, we think our conclusion was *320justified by the evidence, and leave the matter as presented in the original opinion.

The point is made that there is no basis for assuming an implied finding of Beattie’s agency by the trial court, because that court has expressly referred the scope and extent of Beattie’s authority to the decision of this Court. But the only question presented by the exceptions, upon a fair construction of its language, is whether there was any evidence tending to show such an agency as justified the admission of the declarations.

It is claimed further that the discussion regarding the admissibility of this evidence was limited to the claim of plaintiff’s counsel that the contract itself made Beattie the defendant’s agent. It is true that plaintiff’s counsel repeatedly assumed that Beattie’s agency was shown by the insertion of his name in the contract prepared, but a remark made by the court during the discussion indicates plainly enough that it did not accept this view. Evidence was offered and admitted which legitimately tended to establish the required agency; and there is nothing to show that the court based its admission of the declaration upon anything else.

It is claimed that the court erred in its holding regarding the duty which the contract -imposed upon the defendant respecting the dams. The defendant relies upon Vanderwerker v. Vermont Central R. R. Co., 27 Vt. 130, which was a suit to recover for work done in the construction of defendant’s road under a contract which provided that the defendant’s engineer should be the sole judge of the quality and quantity of the work, and that from his decision there' should be no appeal. The defendant also relies upon a line of our cases in which the agreement was to furnish articles to the satisfaction 'of the purchaser. A provision that the thing contracted for shall be to the satisfaction of the purchaser or other recipient is but an enlargement of the obligation assumed. A provision that the performance of a stipulation shall be to the satisfaction of the party who is to perform it, or of his servant who is to do the work, is destructive of, or at least a limitation upon, the obligation otherwise assumed. If this doctrine of satisfactory performance is to be extended to cases of the latter class, it certainly is not too much to say that its application should be confined to cases where the intention of the parties -is evidenced by a plain and definite provision. Here, *321the defendant engages the plaintiff to do certain work, and agrees to provide certain facilities essential to the work. The clause in question reads: ‘ ‘ All of which is to be done as directed by the agent of the party of the second part.” We considered, and still think, that this language is not sufficiently explicit to subject the contractual rights of the plaintiff to any curtailment by the action of defendant’s agent.

The defendant suggests that the Court overlooked its claim that the plaintiff’s motion for the filing of the contract “whereon his cause of action is based” was a judicial admission that his cause of action was based on an express contract. This claim was not specially mentioned because it seemed to be adequately met by the view taken regarding the bases of recovery. But an independent answer can be given. The paper containing this expression was not submitted during or for the purposes of the trial, but to secure the possession and inspection of the writing in preparation for the trial.

No separate treatment was given to the point in which counsel barely suggested the comprehensive effect of an exception to the judgment. The defendant now contends that an exception to the judgment raises every question necessary to be decided in order to render a valid judgment; that the specifications, if not a part of the record for the purposes of a motion in arrest, may be looked into in considering an exception to the judgment; and that it thus appears that this declaration sets up two distinct and repugnant causes of action, on which no valid single judgment can be rendered. The defendant seeks by this argument to place itself in the position it would have occupied if there had been an overruled demurrer to the declaration. But a defendant cannot be permitted to go to trial without having demurred to the declaration, and defeat the result of the trial for any defect of the declaration not sufficient to sustain a motion in arrest. Hoskinson v. Central Vt. R. R. Co., 66 Vt. 618, 30 Atl. 24.

Motion for rehearing denied, and judgment entered for the plaintiff.

Watson and Powers, JJ., dissent.