Miller

himself or others. Redfield, J., in Spalding v. ¡tain an action thereon in his own name. Preston, 21 Vt. 9. v. Goold, 2 Tyl. 439. See 6 Vt. 67. 62. Held, that an action will not lie in favor 70. The defendant promised the plaintiff, an of the publisher of a newspaper upon an agree-officer, who had arrested a debtor on execution, ment to indemnify him for the publication of a that if the plaintiff would suffer the debtor to libel, and to indemnify him for refusing to give remain with the defendant and in his keeping, the name of the author. Atkins v. Johnson, 43 Vt. 78.

he would have the debtor forthcoming to be committed in the life of the execution. Held, that the promise was upon an illegal consideration, and was void in law. Stevens v. Webb, 2 Vt. 344. 18 Vt. 22.

71. The defendant being legally imprisoned

63. No action will lie to recover back money or property advanced upon an illegal contract. Barnard v. Crane, 1 Tyl. 457. For distinction, see Hinsdill v. White, 34 Vt. 558. 64. Against public policy.-Legislature. for a military fine gave his note to the adjutant An agreement of a corporation, upon consideration that a party would withdraw opposition to the passing of an act of the Legislature touching its interests, was held to be against public policy and void. Pingry v. Washburn, 1 Aik. 264. 14 Vt. 387.

65. -sale of office. The sale of an office, or of any agency or influence in the procuring of one, is illegal, and any contract, made upon any such consideration, is void. Ferris v. Adams, 23 Vt. 136. Meacham v. Dow, 32 Vt. 721.

of the regiment, instead of money, in satisfaction of the execution, and was discharged. Held, that the note was upon sufficient consideration. Kingsbury v. Whitney, 5 Vt. 470.

72. The plaintiff, a deputy sheriff, held against the defendant an execution for collection, when the defendant promised him that if he would levy the execution upon real estate, the defendant would pay him for doing it, and would indemnify him. The plaintiff made such levy, instead of taking personal property, for 66. -hired electioneering. The plaintiff which the execution creditor sued the sheriff was a candidate for the office of town represen- and recovered judgment, which the defendant tative. The defendant owed him. They agreed paid. Held, that it did not appear that the conthat the defendant should use his influence and do what he could for the plaintiff's election, and if elected, that should be a satisfaction of the plaintiff's claim. Nothing was said specially about the defendant's vote, but he did vote for the plaintiff, and would not have done so, nor 73. A contract to indemnify a sheriff for have favored the plaintiff's election, but for the past neglect is not illegal. Hall v. Huntoon, 17 agreement. The plaintiff was elected, but gave Vt. 244.

tract was understood to be for mere ease and favor, or to hire the plaintiff to violate a known official duty, and that the plaintiff was entitled to recover the fees for the levy. Gleason v. Briggs, 28 Vt. 135.

no discharge of the debt. In an action to re- 74. -interest of towns. The consideration cover the debt;-Held, that the agreement set of a promissory note was, that the plaintiff up in defense, although not agreed to be kept would forbear to bid against the defendant for secret, was immoral and void-(1), As a bar-the support of the town paupers at a public aucgain of the defendant to sell his own vote; (2), tion. Held, that such contract tended to work to use his influence and exertions in the elec- injustice to the town, was against public policy, tion against his convictions and opinions. Nichols and was void. Noyes v. Day, 14 Vt. 384. v. Mudgett, 32 Vt. 546.

75. The plaintiff, a physician, contracted 67. lobbying. An agreement in respect to with the overseers of the poor of P, to attend services as a lobby agent, or for the sale by an upon a pauper then chargeable to P, and that if individual of his personal influence and solicita-P should, by a contemplated order of removal, tions to procure the passage of a public or pri- succeed in establishing the legal settlement of vate law by the Legislature, is void as being the pauper to be in S, then P should pay him prejudicial to sound legislation, manifestly a reasonable compensation for his services--othinjurious to the interests of the State, and erwise, nothing. P did succeed in establishing in express and unquestionable contravention such settlement to be in S. In a subsequent acof public policy. Powers v. Skinner, 34 Vt.

274.

68. Distinction taken between this, and an employment to conduct properly an application to the Legislature. Ib.

tion by P against S to recover such expenses, it was adjudged that, as between the towns, such contract was so far against public policy that P could not recover. In this action against P, held, nevertheless, that the contract was 69. affecting duty of public officers. An valid, as between these parties, and that the agreement with a deputy sheriff, about to arrest plaintiff could recover. Edson v. Pawlet, 22 a debtor on execution, that, if he will forbear, Vt. 291. See Pawlet v. Sandgate, 19 Vt. 621. the promissor will have the debtor forthcoming 76. -private interests. The plaintiff was at a future time to be taken on the execution in in the employ of O, temporarily, as clerk in his its life, is not illegal; and the deputy may sus-store. O sold out the goods to the defendant,

to be appraised by one P. The plaintiff did not 83. In consideration of a promise by the deintend to remain during the invoicing and ap-fendant to pay the plaintiff, a lawyer, extra for praisal, but consented to do so upon the defend- his services beyond the fees allowed by law to ant's promise to pay him $25, for assisting administrators, the plaintiff undertook the adtherein. At the same time he expected to re- ministration of the estate of the defendant's ceive from O, and did receive from him, the father, which involved matters of complication same pay as before the sale. This the defend- and difficulty, requiring the services of a lawant understood. Held, that the promise was up-yer. Held, that this was a promise for comon good consideration, and the contract was pensation, beyond statutory fees, for services not void as against public policy. Shattuck beyond the ordinary services of an administrav. Nellis, 44 Vt. 262. tor, and was a valid contract, not prohibited by 77. Where one creditor, who had an indi- statute, nor against public policy. Hubbell v. vidual claim against an embarrassed debtor, and Olmstead, 36 Vt. 619. was also member of a firm to which such debtor 84. Services performed in giving informawas indebted, consented to make his firm, with tion to the defendant as to who were witnesses other creditors, parties to a contract with the in a suit in which the defendant was interested debtor to extend the time of payment of their and what could be proved by them, in pursuclaims for a specified period, if he could receive ance of an agreement to that effect, were held to security for his individual claim, and the debtor be a good consideration for a contract. Cobb v. gave such security;--Held, that this fact merely, Cowdery, 40 Vt. 25. Chandler v. Mason, 2 Vt. in the absence of any evidence that the exist-193.

ence of this claim was denied to the other sign- 85. Maintenance. The plaintiff and deers of the contract, or that they were encour- fendant having a similar interest, dependent upaged to expect that it would be treated as em- on a settlement of the same question, orally braced in the contract, did not invalidate the agreed that the plaintiff should commence and contract. Loomis v. Wainwright, 21 Vt. 520. prosecute a suit in his name, by which that ques78. A contract between two trustees, by tion would be decided, and which, as they bewhich one was allowed to speculate for his ad-lieved, would practically enure to the benefit of vantage upon trust funds for a consideration to both; that the plaintiff should make all the be paid to the other, was held illegal and void. disbursements, and when finally ascertained and Foote v. Emerson, 10 Vt. 338. adjusted, that the defendant should pay the 79. Whether an agreement to abstain from plaintiff the one-half. The plaintiff accordingly bidding at a sheriff's sale is a legal considera- brought and prosecuted his suit to judgment, tion to support the promise of another success- and, having paid all the expenses thereof, ful bidder, to share the benefit of the purchase-brought this action of general assumpsit for quære. Paige v. Hammond, 26 Vt. 375. But money paid, to recover the one-half. Held, that see Noyes v. Day, 14 Vt. 384, and as cited, 47 the defendant's promise was upon good considVt. 71. 48 Vt. 246. eration; that the agreement was not within the 80. A contract to forbear purchasing cer- statute of frauds; that it was not against pubtain land at private sale, and to assist the plain- lic policy, as for maintenance; and that the tiff in the purchase thereof, is not void as against plaintiff could recover against a plea of the statpublic policy. Morrison v. Darling, 47 Vt. 67. ute of limitations, the one-half of such expenses 81. Where two mortgagees of land, about to which the plaintiff paid within six years before be sold in bankruptcy, agreed that one or the the suit. Dorwin v. Smith, 35 Vt. 69. other should bid at the sale, and that the one to 86. Restraint of trade. In a contract of whom the land should be “struck off" should copartnership for two years between A and B, hold it in trust, sell it, and apply the avails in physicians, it was agreed that if A sold out to certain agreed proportions upon the mortgages; B at the expiration of the term, he was not to -Held, that such contract was on good consid- 'settle himself in practice" within 20 miles of eration, and was not void as against public pol- B, and if B did not purchase of A his real esicy. Missisquoi Bank v. Sabin, 48 Vt. 239. tate &c., B was not to "settle in the practice of 82. The defendant, one of several heirs of medicine and surgery" within 10 miles of A. an estate, appeared before the probate court, Held, that this was a contract not forbidden by but solely on his own account, to oppose the al- any principle of policy or law, and that an inlowance of the plaintiff's account as administra- junction lay to prevent a breach of it. Butler tor of said estate. In consideration that the v. Burleson, 16 Vt. 176.

defendant would withdraw his opposition, the 87. A contract for a limited and partial replaintiff executed to the defendant a release of straint of trade, if reasonable, and made on a debt due from him to the estate. Held, that good consideration, is valid-as where the desuch release was upon sufficient consideration, fendant, in consideration that the plaintiff, a and was a bar to a recovery for such debt. Hol- dentist, would purchase of him a quantity of brook v. Blodget, 5 Vt. 520. mineral teeth, agreed that he would not sell

such teeth to any other person in Montpelier, fully demanded. Beckwith v. Frisbie, 32 Vt. the place of the plaintiff's residence and busi- 559. ness, so long as the plaintiff should keep himself supplied therewith by purchases of the defendant. Clark v. Crosby, 37 Vt. 188.

As to Sunday contracts, see SUNDAY.

II. INTERPRETATION.

88. Duress. An officer having attached bank bills upon a suit which was afterwards 94. General rules-Right to understand. settled, refused to surrender them to the debtor The language of a party to a contract must be except upon the debtor agreeing that he might construed as the other party had a right to unretain a part of them, as a pretended reward derstand it, or as the speaker expected the other for finding them. Held, that such agreement party would understand it, and he cannot be was compulsory and not binding; that the permitted to give it a different operation in debtor could recover for the amount so re- consequence of some mental reservation. Guntained; or, upon his electing to avoid the agree-nison v. Bancroft, 11 Vt. 490. 23 Vt. 272. ment, that the officer was liable as his trustee. 95. It is a rule of law, no less than of morLovejoy v. Lee, 35 Vt. 430. als, that what is expected by one party to a

89. A person employed by another whom contract, and known to be so expected by the he has illegally imprisoned, to render services other, is to be deemed a part or condition of in freeing him from such imprisonment, cannot the contract. Kellogg, J., in Jordan v. Dyer, recover therefor. Mattocks v. Owen, 5 Vt. 34 Vt. 104.

42.

96. Where the plaintiff asked of the defend90. Where one falsely claimed that he had ant the extension of a license, and the defendpurchased certain property, knowing that he ant, not intending to accede to the request, yet had not, and maliciously and without cause designedly used such "indifferent language" sued out a writ in trover for it, for the purpose as produced upon the mind of the plaintiff the of frightening and causing the owner to sell it impression that his request was acceded to, and to him, and the owner, through fear of arrest he acted under that impression ;-Held, that and imprisonment, such as to lead a man of or- the defendant was bound to the same extent as dinary firmness to be moved and controlled by if he had used express words of assent, even it, yielded to the claim and made the sale ;:though the words used were susceptible of an Held, that the sale was void for duress. Brown- entirely different construction. Holton v. Goodell v. Talcott, 47 Vt. 243. rich, 35 Vt. 19.

91. The defendant gave the plaintiff a note 97. Where the defendant had an account for the one-half of a debt which he was not against one of the plaintiffs and received goods legally holden to pay, but which the plaintiff of the two to apply on his account, as he unclaimed and had given value for, upon the derstood, but not as the other plaintiff underthreat of the plaintiff that, unless this was done, stood;-Held, that if from the conduct of all he would collect the whole of an execution the parties he had good reason, as a prudent which he held against the defendant, as a surety man, to understand that the goods were delivwith others, out of the defendant's property. ered and received to apply on such account, Judgment for plaintiff on the note. Held, they must be so applied. Lewis v. Park, 47 that from these facts there was no legal infer- Vt. 336. ence of fraud, duress or oppression; and this not having been found by the county court as a fact, the judgment was affirmed. Brown v. Tyler, 16 Vt. 22.

98. Contemporaneous instruments. Several instruments executed at the same time, between the same parties, and upon the same subject matter, are to be treated as one instru92. A payment by the plaintiff of the de- ment and to be construed together. Wing v. fendant's disputed counter claim and a settle- Cooper, 37 Vt. 178. Raymond v. Roberts, 2 ment made according to the defendant's claim, Aik. 204. Strong v. Barnes, 11 Vt. 221. Reed though under protest of the plaintiff, cannot be v. Field, 15 Vt. 672. Rogers v. Bancroft, 20 said to be by duress, because, otherwise, the de- Vt. 250. Tittemore v. Vt. Mutual F. Ins. Co., fendant would have been left largely in debt to 20 Vt. 546. Graham v. Stevens, 34 Vt. 166. the plaintiff. Hibbard v. Mills, 46 Vt. 243. 99. Nice grammar. The great object, and 93. The defendants, carriers, held the plain- indeed the only foundation of all rules of contiff's goods, which they refused to deliver with-struction of contracts [as a deed], is, to come out the payment of more money than they had at the intention of the parties. Any rule which a right to demand. The plaintiff, for the sake leads aside from this grand object, is to be disof obtaining his goods, paid under protest the regarded-as, a nice grammatical construction, sum demanded, and without first making a ten- &c. Gray v. Clark, 11 Vt. 583. der of the sum actually due. Held, that the 100. This last is specially true, where the payment was by compulsion, and that the words of the instrument are obviously not those plaintiff could recover back the sum wrong-of a professional scrivener, but of an inexperi.

enced draftsman. Rood v. Johnson, 26 Vt. 64, and not to include an article not enumerated. 71. Hickok v. Stevens, 18 Vt. 111.

101. Apparent error. Where it is per- 109. In a contract of sale of a patent right fectly apparent upon the face of a written in- for a certain machine, it was provided, that "if strument that a mere clerical error has been there should be any defect in said patent made, and it is also apparent from the face of whereby all its privileges can not be enforced, the instrument what the correction should be or if there shall be any other invention so nearto make it as intended, the court will correctly like it as to materially affect the value of the such error by construction. Richmond v. same now in the patent office, or if there should Woodard, 32 Vt. 833. Wood v. Cochrane, 39 be any other defect whatever, this contract to be Vt. 544. Goodwin v. Perkins, 39 Vt. 598. void." Held, that this last general clause had

102. Thus, in the description of land in the reference to the same class of defects as before levy of an execution, the word "northwest," specified, that they embraced defects in the as descriptive of a corner, was taken to mean patent only and not in the machine. Vaughan "southwest." Barnard v. Russell, 19 Vt. 334. v. Porter, 16 Vt. 266.

103. This rule applied where the name of a 110. Practical construction. Where the person was inserted in the condition of a bond terms of a written contract are equivocal, rewhose name did not elsewhere appear in it, and sort may always be had to the circumstances was not connected with the subject matter of under which it was executed, and the contemit, in place of another name which apparently poraneous construction given to it by the parought to have been inserted. Richmond v. Wood-ties, as evidence by possession, or other similar ard. acts. Gray v. Clark, 11 Vt. 583.

104. Operative effect. In construing a 111. The acts of parties in the execution of contract, words are not to be taken in a frivo- a contract are admissible, to show how the parlous or ineffectual sense, where a contrary ex-ties understood their contract, and as a practiposition can be given them; and where the cal construction of it. Barker v. Troy & R. meaning of the language used is doubtful, or R. Co., 27 Vt. 766.

susceptible of two senses, that is to be adopt- 112. The rights of parties under a written ed which will give effect to the instrument as a contract,-how far determined by the practical legal contract, rather than that which will ren-construction of it by the parties, and their conder it inoperative. Thrall v. Newell, 19 Vt. cessions. Ib. Thompson v. Prouty, 27 Vt. 14. 202. Vt. & Canada R. Co. v. Vt. Central R. Co., 34 Vt. 2.

105. to every part. Agreements must be construed, if possible, so as to give effect to 113. Instances of interpretation. The every part, and form from the parts a harmoni-literal import of the words of a contract-“I ous whole. Instance, Hydeville Co. v. Eagle agree to pay, &c.,"-was held to be controlled R. & Slate Co., 44 Vt. 395. by the subject matter and the relations of the parties, and to be the contract of a firm of which the plaintiff and defendant were members, and not the individual undertaking of the defendant to the plaintiff. Hills v. Bailey, 27 Vt. 548.

106. General words, and specific. General words in a contract, or conveyance, will be explained and controlled by more particular and specific words in the same instrument, regarding the same subject matter. Thus a conveyance was of "a certain piece of land ** described as follows, viz: it being two hundred shares, numbers as follows-No. one to two hundred inclusive, $100 each share"-being 115. An ambiguous written contract,― doubtstock in a manufacturing corporation. Held, ingly construed. Foot v. Maxhams, 9 Vt. 223. that this was to be construed as a conveyance 116. A, by deed, granted to B the right of of stock, and not of land. Wheelock v. Moulton, procuring marble from A's land. Held, that A 15 Vt. 519.

107. It is an ordinary rule of construction of writings, that where there is a special enumeration of particulars, and general words are also used, the general words refer to particulars of the same nature or kind as those specifically named. Brainerd v. Peck, 34 Vt. 496.

114. Bill of sale given as security for a debt, -interpreted by reference to its purpose. Durkee v. Leland, 4 Vt. 612.

had no right to the small pieces of marble broken off in reducing the blocks to size and shape for sawing. Rice v. Ferris, 2 Vt. 62.

117. Particular terms. Certain stoves, delivered upon a contract payable in "good cooking stoves at the furnace price" (the vendor not being a manufacturer), fell to pieces on 108. The words "meaning to sell all our in- putting fire in them, from some latent defect. terest in the articles of personal property of S. Held, that the words did not amount to a war& Co.," as used in a bill of sale which com- ranty of quality, and that no warranty was immenced: "Bought, &c., the following articles," plied ;--that no definite quality can be intended and then specified the articles with the price by the term good, and that the language imports of each were held to be but words of reference, nothing but opinion. Barrett v. Hall, 1 Aik. 269.

118. On a sale of pork, with a stipulation that if the security offered was in fact adequate, that the seller should be "accountable for the it might be either personal or real security; and quality and weight of the pork only ;"-Held, that it was no legal objection to the real securithat he was accountable if the pork was not ty offered, that there was a previous mortgage salted according to the usual custom. Adams upon it. Hard v. Brown, 18 Vt. 87. v. Simple, Brayt. 237.

128. In the sale of lamp oil the warranty

119. Where a party binds himself "to exe- was, that the oil should “stand the climate of cute and deliver a good and valid deed of lands, Vermont without chilling." Held, that the propwith the usual covenants of seisin and war-er construction of the warranty was, that the ranty," and he afterwards conveys the title oil would not chill when employed in Vermont which he had to another, he has broken his con- in any of the ordinary uses in which lamp oil tract and the other party may sue for the breach, is employed, and in the manner in which, in or may treat the contract as rescinded. Stow business, lamp oil is required to be used. Hart v. Stevens, 7 Vt. 27. v. Hammett, 18 Vt. 127.

120. The words, "shall make and well exe- 129. A contract for the delivery of “good cute a good, authentic deed," relate merely to coarse salt" is answered by the delivery of coarse the validity and sufficiency of the deed, in point salt, as good, in fact, and not in reputation of law, to convey whatever right the grantor merely, for all the uses to which salt is ordinathen had in the premises, and do not refer to rily applied, as a medium of the kinds of coarse the title to be conveyed. Preston v. Whitcomb, salt then known and used in the vicinity. If 11 Vt. 47. Redfield, J., dissenting. inferior in kind, or not a good article of the kind, the contract is not answered. Turner, 21 Vt. 437.

121. The words, "to give a good warranty deed," are descriptive of the kind of deed to be given, and not of the title, and are satisfied by the giving of such a deed, though there be an outstanding mortgage. Joslyn v. Taylor, 33 Vt. 470.

122. But a contract "to convey by a deed of conveyance a tract of land," is a contract not merely to give a deed, but to convey the land and give title. Lawrence v. Dole, 11 Vt. 549. 33 Vt. 474.

Goss V.

130. A note payable in "half-blooded merino wool," is not answered by the delivery of wool of which a part does not fairly and reasonably answer the quality and fineness of half-blooded merino, and of an equal amount of finer and better quality, so as to make the average equal to half-blooded merino. All the wool must be of the quality contracted to be paid. Perry v. Smith, 22 Vt. 301.

123. An attorney agreed not to charge his 131. An order drawn for "37.89" was held client for any costs, except officer's fees on to be intelligible and to express the currency of uncollected demands. One demand was satis- the U. S. dollars and cents. Northrop v. Sanfied by a levy upon lands. Held, that this was born, 22 Vt. 433.

a demand collected; and as the whole pay, in- 132. The plaintiff contracted to do certain cluding the costs, had gone to the client, he work, " rip-rap, at 50 cents per cubic yard.” must pay such costs to the attorney. Davis v. In the absence of proof of any general usage or Downer, 10 Vt. 529. uniform custom to determine the mode of meas124. The defendant induced the plaintiff to urement ;-Held, that the measurement of the take in trade a note which he represented to be work should be of the stone as fitted and laid "perfectly good." Held, that this was tanta- into the wall-the rip-rap wall- and not the mount to saying that the maker was amply re-excavation, or stone before being broken. Wood sponsible. Weeks v. Benton, 7 Vt. 67. v. Vt. Central R. Co., 24 Vt. 608.

125. Ch. 34 of the acts of 1824 enacted, that 133. In a written contract for finishing a "the standard weight of rye and Indian corn house, the stipulation was: "The work to be shall be fifty-six pounds, nett, to the bushel." done in the best style and design of the present Held, that this defined the import of the term time, and adapted to such a house and its several bushel; and that a contract for the delivery of parts, and in as good a style, and workmanship, 100 "bushels" of corn was satisfied by the de- and finish, as any in Burlington, Vt." Held, livery of 56 hundred pounds of corn, though that this limited the expensiveness of the styles, measuring less than 100 Winchester bushels. designs, or patterns, of the finish to the style, and Richardson v. Spafford, 13 Vt. 245. workmanship, and finish of the best houses in

126. A contract to pay "in leather" implies Burlington. Herrick v. Noble, 27 Vt. 1. that it shall be of merchantable quality. If 134. A conveyance of "all one's personal condemned and stamped by the leather sealer property of every name and nature," was held to as "bad," this is evidence that it was not such convey the grantor's choses in action. Sherman as to satisfy the contract. Elkins v. Parkhurst, v. Dodge, 28 Vt. 26. 17 Vt. 105.

135. The plaintiff contracted with the de127. An agreement being that a lessee should fendant to manufacture for him 100 straw-cutgive "sufficient" security for the rent ;-Held, ters—the defendant "to furnish the castings."