On Motion for Reargument.
After the decision of this case as shown by the above opinion, the defendant filed a motion for a reargument, whereupon the judgment entry was withheld, the case left with the court, and the defendant given leave to file a brief presenting his grounds for asking for reargument.
A brief was shortly filed by some of the counsel for the defendant, and later another brief was filed by other counsel for the defendant.
Brief No. 1 urges that the court erroneously held that the title to the six granite blocks passed out of the Ellis Company, upon the delivery of the blocks at Northfield. Counsel say that the Court, in the opinion, lays great stress upon the fact that the blocks of granite were to be delivered at “Northfield.” But the very opposite is the fact. The aim of the opinion is to make it clear that though the granite blocks were delivered at Northfield, on the premises of the Ellis Company, the situation was not different from what'it would have been if they had been delivered at some of the other places considered. The opinion shows for itself.
Counsel now claim that the court below erred in finding that there was a delivery of'the blocks of granite at Northfield. We discuss this matter no further than we did in the opinion above, for no exception was taken to the finding complained of.
*189Counsel claim that the plaintiff’s contract was not with the Washington Terminal Company. This claim is probably immaterial, but the court below took that view of the contract in a finding to which no exception was taken, and in their original brief in this Court, the defendant’s counsel so designated the contract six or seven times, sometimes with emphasis.
Counsel now admit in their brief on this motion that in their original brief they “mentioned” the Washington Terminal Company as principal in the contract with the plaintiff; and that there were facts and statements in the foreclosure suit referred to in the opinion, showing that the Terminal Company was the real principal. But the counsel now say that in the evidence and records in this case ‘ ‘ so far as they have seen them, ’ ’ there is not a word disclosing such fact. While we do not refer to the transcript to sustain the findings of the court below, since the finding was not excepted to, we do refer to it to meet the suggestion last made; and we find, on page 21 thereof, that the defendant’s counsel distinctly stated in open court, that the contract now under consideration, was between the plaintiff and the Washington Terminal Company. The plaintiff’s counsel, as appears on page 9 of the transcript, had already stated the same thing in open court. There was no misunderstanding or inadvertence about this matter in the court below, and the defendant has nothing to complain of in this matter.
The remainder of the brief in support of the motion is, except upon one point, devoted to matters touched upon in the opinion with as much fullness as seemed then, or as seems now, to be profitable.
At about the time of the attachments by the Northfieid institutions, in which they attached the statues as the property of the Ellis Company, the plaintiff also caused them: to be attached as the property of the Ellis Company, and it was afterwards that this suit of replevin was brought. The point which we have passed over raises the question that this attachment by the plaintiff estops it from claiming an interpretation of the contract under consideration inconsistent with ownership by the Ellis Company of the statues at the time of the attachment. This claim was, in substance, made in the original argument of the case, though not by counsel whose brief we are now considering, and was not overlooked by the court, though it was not mentioned in the opinion; for the law is clearly settled that such *190mere attachment does not operate as an estoppel to deny title in the defendant, since an estoppel always involves the element that one has been misled to his prejudice. Webster v. State Mutual Fire Ins. Co., 81 Vt. 75, 69 Atl. 319; Boynton v. Hunt, 88 Vt. 187, 92 Atl. 153; Vermont Accident Ins. Co. v. Fletcher, 87 Vt. 394, 397, 89 Atl. 480; Royce v. Carpenter, 80 Vt. 37, 46, 66 Atl. 888. And here no claim was or is made that the defendant or the Ellis Company or any attaching creditor was misled to his or its prejudice.
In this State an approved way of attaching the real estate of a defendant in a town is to attach as his, all the real estate in the town. But' it would be quite absurd to claim that, by such attachment merely, a plaintiff is estopped from afterwards asserting that some of the real estate in the town belongs to himself or to some one else than the defendant in the attachment suit.
Finally with reference to this question of estoppel we remark that the record doés not show that an estoppel was either pleaded or relied on in the court below and that for that reason the defendant was not entitled to have the matter considered on review. Atkins, Exr. v. Atkins, 87 Vt. 376, 385, 89 Atl. 643.
However, the defendant claims that the attachment has evidentiary force. Whether this attachment by the plaintiff in 1912 had any tendency to show the mutual intention of the parties to the written contract of 1907, was, in the first instance, a question of law for the trial court. And if it had any such tendency its weight was for the consideration of the court in finding the facts. The defendant had no exception bringing these questions here.
We turn now to brief No. 2, on the motion for a reargument, a brief presented by other counsel for the defendant than those who prepared brief No. 1, already considered.
The first thing which attracts our attention causes some surprise. The defendant through the counsel who prepared brief No. 1, had argued at very considerable length that the court fell into error in treating the Washington Terminal Company as a party to the contract with the plaintiff which has been so much discussed. But in brief No. 2' the defendant, through other counsel, takes the other view, and throughout treats the contract referred to as one between the plaintiff and the Washington Terminal Company. The claim advanced in brief No. 2, is that *191this contract with the Terminal Company would not, however, pass title to the granite blocks to the Terminal Company upon their delivery at Northfield, that the contract did not contemplate and that there was not in fact, any such delivery of the granite blocks at Northfield, as would pass title to the Terminal Company, or for that matter to any one at Northfield — that title to nothing would pass until the statues were set in place at the Terminal Station at Washington and accepted, and that so far as the case shows, they may still be unaccepted and may yet be “thrown back upon the Ellis Granite Company.”
The nature of the contract in question was fully argued in. the original hearing, and was fully considered by the Court, and it would be to no purpose to restate it. The contract as we construed it and now construe it, was for the quarrying and delivery of certain blocks of granite at Northfield, and further for the later doing of certain things with regard to statues to be' in the meanwhile carved out of the blocks by virtue of a contract between the Washington Terminal Company and St. Gaudens.
The counsel in brief No. 2 argue with regard to the finding of the delivery of the blocks of granite at Northfield, that delivery without acceptance, about which there is no express finding, does not pass title. But the word'“delivery” often imports acceptance and the passing of title, and in view of the judgment of the court below, we held that the word was so used by the court below. We did not' refer in this connection to the Terminal Company’s contract with St. Gaudens, not feeling at liberty to assume that the defendant knew more of it than its general nature; but now counsel refer us to its terms, and so we note that the Terminal Company contracted with St. Gaudens that it would furnish the granite, to be carved for its purposes and uses, and that the carving was done under'this contract. This imports an acceptance of the granite blocks, and shows very clearly the sense in which the word “delivery” as used in the findings is to be taken. We said before that the contract was somewhat vague, and we say now that it was somewhat loose, but it is to be remembered that, as the casé shows, the Washington Terminal Company, had for several years before procured the furnishing of the stone work of the Union Station from the Bethel quarries, and may be presumed to have felt some reliance upon the character of the granite -therefrom. At any rate they left the contract for the *192granite blocks as they did, and our interpretation of it is unchanged.
It 'appeared, as stated in the opinion that the plaintiff claimed-that the delivery at Northfield passed title to it, and that the defendant claimed that there was no delivery to anybody. It sufficiently appeared that the respective claims here and below were, on the one hand, that the-Thompson-Starrett Company was the general owner, of the statues, and on the other hand that the Ellis Company was the general owner. The court below found that the granite blocks were delivered at Northfield, but made no finding in the matter of to whom the title to the granite blocks passed by the delivery at Northfield. No exception was taken to the failure to find in "this respect, and we considered it a necessary conclusion from the writings that constituted the contract, and that were referred to and made a part of the findings, that the general title to the granite blocks passed to the Terminal Company, upon their delivery at Northfield. Since this conclusion seemed a necessary one and sustained the judgment, we proceeded to draw it, and though the defendant now complains of our course in doing so, the course taken was entirely proper. Any other course would under the circumstances have been unwarranted. County of Bennington v. Manchester, 87 Vt. 555, 558, 90 Atl. 502. The questions we considered were necessarily involved in the main inquiry. In re Ruggles’ Wills, 73 Vt. 355, 359, 51 Atl. 8; First National Bank v. Bertoli, 88 Vt. 421, 426, 92 Atl. 970. And the ultimate question for us was, did the case show that the court below erred in rendering judgment for the plaintiff. Burlington Paper Stock Co. v. Diamond, 88 Vt. 160, 163, 92 Atl. 19.
Both briefs on the motion for a reargument deal largely with questions that were fully argued on the original hearing and that were carefully considered by this Court in reaching its decision.
In some respects the briefs, we think, misinterpret the opinion. But upon fuller consideration by counsel, we think the views of the court as expressed in the opinion will not be considered capable of misconstruction. In view of the length of the briefs, unusual on a motion of this sort, we have not undertaken to mention the claims made in every subdivision thereof. But we have carefully examined both briefs, and have carefully reexamined the briefs of counsel on the original hearing. See Town School District v. District No. 2, 72 Vt. 451, 456.
*193 Our conclusions remain unchanged, and the motion for a reargument is denied. The judgment of affirmance is no longer ivithheld. Let it be entered by the clerk.