for breach of contract, unless they are the natural and ordinary, and therefore the known and necessary result of the breach, or were fairly within the contemplation of the parties at the time of entering into the contract. Ib.

363. The plaintiff and defendant were interested, in different proportions, in a promissory note in the hands of the defendant, payable in money and well secured. The defendant, without consent of the plaintiff and without necessity, took a colt in part payment, which he kept on expense until it died. Held, that the plaintiff was not obliged to share this loss, but the defendant was liable for the plaintiff's full share of the note. Childs v. Boyd, 43 Vt. 532.

358. The defendant rented to a tenant a house situate on the line of a road, which the plaintiff had contracted with the defendant to build and complete by a day specified-the tenant, in his hiring, relying upon the road being completed as agreed. By reason of its not be- 364. The plaintiff had purchased four uning so completed the defendant was obliged to divided fifths of certain land, but failed to obdiscount to the tenant one-half the agreed rent. tain the other fifth because the defendant purIn an action to recover for the building of the chased it in violation of his contract with the road;-Held, that the damage thus claimed to plaintiff not to do so; whereupon the plaintiff have been sustained by the defendant was too procured partition by the probate court. In an conjectural and remote (as stated) to be regard-action on the contract ;-Held, that the true rule ed as damages naturally and necessarily result- of damages was what such one-fifth was worth ing from the delay in completing the road, so more than what the plaintiff would have had to as to be allowed by way of recoupment. Smith pay for the same, except for the defendant's interv. Smith, 45 Vt. 433. ference and breach of contract; and that it was error to include the expenses of the partition. Morrison v. Darling, 47 Vt. 67.

359. But where the defendant was obliged, by reason of the road not being completed as agreed, to build a winter road instead for his 365. In actions upon debts due in coin, the necessary accommodation ;-Held, that the ex-value in currency of the amount of the debts in pense of building such winter road was proper coin, when due, is not the true rule of damdamages to be allowed in recoupment. Ib. ages. Townsend v. Jennison, 44 Vt. 315. See Davis v. Field, 43 Vt. 221.

360. Where the defendants were bound by contract to repair a drain on premises leased by 366. Entire damages. Under a contract them to the plaintiff ;-Held, that if, on re- between a turnpike company and a town, by quest, they refused to repair, the plaintiff which the company agreed to support a certain should have made the repairs, and the expense highway bridge of the town for twenty years, would be the measure of the damages; but in consideration of $25 a year to be paid by the where the defendants, after notice to repair the drain, promised from time to time to do so, but neglected, and so kept the plaintiff from doing it, held, that the plaintiff could recover his entire damages for the breach, although exceeding the cost of the repairs. Keyes v. Slate Co., 34 Vt. 81.

town, the company performed the contract for eight years, when it refused to proceed further. Held, that the rule of damages for such breach of the contract was the difference between what the town had agreed to pay, and the probable expense of performing the contract, and thus assess the entire damages for the remaining twelve years. Royalton v. R. & W. Turnpike Co., 14 Vt. 311.

361. Where the plaintiff was prevented by the defendant from completing a contract with him for the manufacture of certain machines; 367. The true criterion, whether, in an ac-Held, that in estimating the damages for a tion upon a continuing contract, damages can breach of the contract, the value to the plaintiff be recovered for a non-performance of the whole of the unfinished machines should be reckoned, contract, and so for damages not sustained when --the property not having vested in the defend- the action is brought and suit tried, is, whether ant. Allen v. Thrall, 36 Vt. 711. See Board- there has been such a breach as authorizes the man v. Keeler, 21 Vt. 78. plaintiff to treat it as entirely putting an end 362. The defendant contracted to purchase to the contract-whether the breach is entire of the plaintiff a specified number of bushels of and total, or only partial and temporary-and potatoes at a specified price per bushel, and this may be a question of fact for the jury. afterwards ordered the plaintiff to stop pur- Remelee v. Hall, 31 Vt. 582. chasing, and declined to receive any more. In 368. Accruing damages. Where there has an action on the contract-Held, that the de- been a breach of the condition of a bond of infendant was not liable to pay for potatoes there- demnity before suit brought, so as to sustain an after purchased by the plaintiff to fill the con- action, the damages are to be assessed down to tract, nor for any loss thereon by freezing or the time of trial, although accrued after suit rot; and was liable only for the difference be- brought. Spear v. Stacy, 26 Vt. 61; and see tween what it would have cost the plaintiff to Lowry v. Walker, 5 Vt. 181. procure the potatoes, and the contract price. Danforth v. Walker, 40 Vt. 257.

369. How affected by mode of declaring. If by the fault or neglect of the defendant it is

rendered impossible to estimate the compensa-assessed as under the original contract. Hill tion by the stipulations of the contract, the v. Smith, 32 Vt. 433. S. C., 34 Vt. 535. plaintiff may recover upon a quantum meruit. 375. It is perfectly well settled in this State, But the mere fact that a breach of the contract that where there is an entire contract for work by the defendant, or his fault or neglect, may to be performed upon certain terms and condiembarrass the plaintiff to some extent in his tions upon the lands or buildings of the promiproof, will not necessarily give the plaintiff the see, and the work is performed, but not strictly right to abandon the contract and recover inde- according to the special stipulations, the laborer pendent of it. Myers v. Baptist Society, 38 Vt. may nevertheless recover upon a quantum meru614. it for the labor, and upon a quantum valebant 370. Where a party to a special contract for for the materials. furnished, according to the labor, for which an entire sum was agreed to be price stipulated in the special contract, deductpaid, has performed a part according to its ing therefrom such damages as the other party terms, and has been prevented from perform- may have sustained by failure to perform the ing the residue by the act or default of the work strictly according to the contract. Merother party, he may sue either on the contract row v. Huntoon, 25 Vt. 9. Joslyn v. Merrow, to recover damages for the breach of it, or in 25 Vt. 185. general assumpsit for the value of what he has 376. Recoupment. Recoupment--a quasi Derby off-set of counter claims not liquidated. Londonderry v. Andover, 28 Vt. 416. For further 371. In such case, if he sue on the contract instances, see Crosby v. School District, 35 Vt. he must set it forth specially, and then his dam- 623. Corliss v. Putnam, 37 Vt. 119. Phelps ages for what he has done under it must be regu- v. Paris, 39 Vt. 511, and infra. lated by the contract price, and he will recover 377. Where a party has not been guilty of a such a proportion of the whole contract price, voluntary abandonment or wilful departure as the work he has done bears to the whole from his contract, has acted in good faith, inwork to be done under the contract; and may tending to perform the contract according to its also recover the profit he would have made by stipulations, but has failed in a strict complibeing allowed to complete the contract, and the ance with its provisions, and where from the damages he may have incurred in providing labor and means to perform the residue. Ib.

done. Chamberlin v. Scott, 33 Vt. 80. v. Johnson, 21 Vt. 18.

372. If, in such case, he choose to waive the contract and sue in general assumpsit for work and labor [or in book account], then the measure of damages will be a reasonable compensation for the work actually performed. He is not then limited to recover a pro rata share of the contract price. Ib. See Preble v. Bottom, 27 Vt. 249. 21 Vt. 18.

nature of the contract and of the labor performed, the parties cannot rescind and stand in statu quo, but one of them must derive some benefit from the labor or money of the otherin such case, the party failing to perform his contract strictly may recover of the other, as upon a quantum meruit, such a sum only as the contract, as performed, has been of real and actual benefit to the other, estimating such benefit by reference to the contract price of the whole work. Bragg v. Bradford, 33 Vt. 35. 373. The plaintiff contracted to do a job of Dyer v. Jones, 8 Vt. 205. Gilman v. Hall, 11 joiner's work for the defendant, and to com- Vt. 510. Blood v. Enos, 12 Vt. 625. Bracket plete the job by the 15th of August. The de- v. Morse, 23 Vt. 554. Morrison v. Cummings, fendant agreed to pay therefor $100 by the 1st 26 Vt 486. Hubbard v. Belden, 27 Vt. 645. of July, and the balance on the completion of Barker v. Railroad, 27 Vt. 780. Swift v. Harrithe job. The defendant neglected after demand|man, 30 Vt. 607. Kettle v. Harvey, 21 Vt. 301. to pay the $100 by the day named, and the Keyes v. Slate Co., 34 Vt. 83. Eddy v. Clement, plaintiff abandoned the work. In an action of 38 Vt. 486.

book account;-Held, that the plaintiff could 378. The method of estimating this benefit recover for the work done a pro rata compensa- is, first, to deduct from the contract price such tion according to the contract price. Preble v. sum as will enable the other party to get the Bottom. contract completed according to its terms ;374. Where a contract for the sale and de-or, where that is impossible or unreasonable, livery of articles by a day named has been ex- such a sum as will fully compensate him for tended as to the time of delivery, and the pur- the imperfection in the work and the insuffichaser (plaintiff) claims anything by reason of ciency of the materials, so that he shall in this such enlargement of the time, (as larger dam-respect be made as good, pecuniarily, as if the ages for non-delivery, by increase of the market contract had been strictly performed; and, price during such enlarged time), his declara-second, to deduct also from the contract price tion must be framed to cover the contract as whatever additional damages the breach of the thus enlarged and altered. If only the original contract may have occasioned him. contract be counted upon, the damages must be mainder will be the benefit which the party

The re

sought to be charged has derived from such nished with the necessary description of the part performance of the contract. Ib. lumber required. Field v. Black, 42 Vt. 517. 379. In an action for the price of lumber 389. May defeat action. Where the furnished under a special contract :-Held, that plaintiff recommended himself as a competent the defendant's damages for non-delivery at the workman and undertook to work as a mastertimes stipulated were the subject of recoupment builder, and through his neglect or unskillfulin the action, and no plea in set-off was neces-ness his employer suffered loss to a greater sary-the same as in case of a failure to meet amount than the sum due for services at the the contract as to quantity and quality. Eddy stipulated rate;-Held, that this defeated his

v. Clement, 38 Vt. 486; and see supra.

380. It is not the subject matter of the contract that determines the applicability of this mode of recovery, but the nature of the agreement and of the breach of it. Steele, J. Ib. 491.

action for services. Goslin v. Hodson, 24 Vt.

140.

390. The plaintiff took the defendant's sheep to pasture and to supply sufficient feed to fatten them for market. The sheep getting poor for want of sufficient pasturage, the de381. Thus, under a special contract to chop fendant took them away before the end of the trees upon another's land, where the work was season, and the loss to the defendant was more not done strictly according to the contract, but than the contract price of keeping. Held, that the failure was not wanton, the party was held the plaintiff could not recover on the contract, entitled to recover under a quantum meruit, for he had not performed it; nor on a quantum what the work was worth to the party benefit- meruit, for the loss to the defendant by the ed. Dyer v. Jones, 8 Vt. 205. breach of the contract was more than the benefit from the keeping of the sheep. Corliss v. Putnam, 37 Vt. 119.

382. So, where the contract was to build, on another's land, $60 worth of stone wall of a given height and thickness at a given price per rod, and some portion of the wall was not of the height stipulated. Gilman v. Hall, 11 Vt.

510.

383. So, where the contract was to pasture a given number of cattle in a particular pasture, giving them the entire range, and the party suffered the fences to become so poor that other cattle broke in and consumed the feed, so| that a part of the depastured cattle had to be removed by the owner. Brackett v. Morse, 23 Vt. 554.

384. The same rule applied to a contract for the construction of lime kilns, imperfectly done.

Morrison v. Cummings, 26 Vt. 486. 385. So, to a contract to run a saw mill for a year in a good workmanlike manner, the party being dismissed for imperfect work. Swift v. Harriman, 30 Vt. 607.

386. So, to a contract for the building of a bridge and highway. Kelly v. Bradford, 33 Vt. 35.

66

391. Acquiescence. The mere use of coal kilns erected upon the defendant's land, which were defectively constructed, but the defects not apparent and only to be discovered by use, or by tests, and part payment for the work, were held not to amount to an acquiescence, or waiver of a claim for deduction from the contract price, except to the extent of the payment. Morrison v. Cummings, 26 Vt. 486.

392. In an action to recover for labor performed under a contract special as to price per day, the defendant, to reduce the recovery, may prove that the plaintiff was unfaithful and indolent, and did not earn the wages stipulated, unless the defendant has acquiesced in the manner of performing the work. To the extent that the defendant, in such case, had paid for the labor, held, that he was bound, and could not recover it back. Morris v. Redfield, 23 Vt. 295.

393. C had contracted to work for the defendant for an entire term, and while so at 387. Also, to a contract for railroad con- work gave the plaintiff a written order, which struction. Merrow v. Huntoon, 25 Vt. 9. the defendant accepted, as follows: "I accept 388. The plaintiff agreed to furnish the this order, so far as I am owing said C, or shall defendant lumber necessary for the building of be owing him the first of October next." Soon a mill, 'as it should be wanted." He did fur- after, C abandoned his contract and absconded, nish the whole amount of lumber, but not so whereby the defendant sustained more damage fast as needed, and the completion of the mill than the labor of C was worth. Held, that the was delayed thereby to the defendant's damage. acceptance by its terms bound the defendant to But, it appearing from the auditor's report that pay to the extent that he owed C at the date of the case was such as required notice to the the acceptance, although C could not have replaintiff of the size and quantity of lumber covered under his contract. Bellows v. Bingwanted from time to time-Held, that in order ham, 28 Vt. 243.

to the allowance of such damage against the 394. Where the plaintiff's claim results from plaintiff's claim, it should be found affirmative- an attempt on his part to perform a special conly that the plaintiff neglected to furnish the lum- tract, the defendant, by accepting what is done ber within a reasonable time after he was fur-under it from time to time, is not precluded

from showing, in defense, that he has received the general issue, show in reduction of damages less than enough to compensate him for the the breach by the plaintiff of stipulations indedamages sustained by the plaintiff's failure to perform the special contract. Myrick v. Slason, 19 Vt. 121. Allen v. Hooker, 25 Vt. 137. Smith v. Foster, 36 Vt. 705. Andrews v. Eastman, 41 Vt. 134.

pendent of those on which the plaintiff sues, although contained in the same instrument. Keyes v. Western Vt. Slate Co., 34 Vt. 81.

398. Warranty. In an action for goods sold, or services performed at an agreed price, 395. The plaintiff agreed, for a gross price, where there is a warranty accompanying and to furnish the defendant with wood for her part of the contract, a breach of such warranty fires for one year, such wood to be good dry may be given in evidence under the general wood, and not wood from last-blocks-which issue, or in an action on book for the price, in was green wood and not fit for burning. The reduction of the damages. Allen v. Hooker, 25 plaintiff furnished wood according to the con- 137. Keyes v. Western Vt., Slate Co. Walker tract through the winter, but in the summer v. Hoisington, 43 Vt. 608.

commenced furnishing such last-block wood, 399. An offer to perform after a breach of which the defendant used until the fall at an the contract is unavailing to cure the breach. inconvenience, and finally, the plaintiff not fur-Clifford v. Richardson, 18 Vt. 620. Stevens v. nishing any other kind of wood, the defendant Smith, 21 Vt. 90. Winn v. Southgate, 17 Vt. supplied herself elsewhere. The plaintiff did 355. Suttons v. Tyrell, 12 Vt. 79. not ask her if she would accept the last- 400. Promise of marriage. In assessing wood upon the contract, nor did she refuse to damages for breach of promise of marriage, it is accept it, nor make any complaint that, the not a legitimate subject for the jury to consider, plaintiff was not furnishing such wood as he that the plaintiff might have been worse off by had contracted to furnish. Held, that as the her marriage, by reason of the defendant's want plaintiff had stipulated both as to the kind of of affection for her. Piper v. Kingsbury, 48 Vt. wood he should furnish and as to the kind he 480. should not furnish, these facts did not constitute such an acceptance of the wood upon the contract as entitled the plaintiff to recover the contract price for good dry wood; and that he was entitled to compensation only to the extent of the benefit actually received by the defendant; and that the defendant had the right to have deducted from the contract price the damages sustained by the non-performance of the entire contract by the plaintiff. Andrews v. Eastman, 41 Vt. 134.

396. The plaintiff contracted with the defendant, under seal, to build a road in the town of S, and complete it by a specified time. He failed to complete it by the time specified. The defendant did not agree to enlarge the time of performance, but suffered the plaintiff to proceed with the work after the expiration of such time; urged him to under-let a part, which the plaintiff might have done; remonstrated against

CORPORATION.

I. CORPORATE EXISTENCE, AND PROOF
THEREOF.

II.

STOCK AND STOCKHOLDERS.

III.

MEETINGS AND RECORDS.

IV.

OFFICERS AND AGENTS.

V.

CORPORATE POWERS.

1. Public grant. In case of a public grant his delays, and notified him that he should emanating from the same power that can create claim damages therefor; was present on differ- a corporation, the very grant or charter creates ent occasions when the selectmen of S accepted and gives the competency to take,—and, as a portions of the road which were built after the corporation, if necessary to that end. Lord v. expiration of such time, and made no objec- Bigelow, 8 Vt. 445.

tions thereto. In an action of general assumpsit 2. In esse from date of charter. A corfor work done;-Held, that the defendant had poration may be regarded as in esse from the thereby waived his objection to the plaintiff's date of its charter and before any subscriptions right of recovery, at all, because he did not to its stock, for the purpose of contracting and complete the whole road by the time specified, being contracted with in matters relating to its but that this did not bar the defendant of his organization, where certain persons named and right to insist on a deduction from the contract their successors who shall become subscribers on account of damage by delay. Smith v. Smith, are incorporated, or where only such as shall 45 Vt. 433. become subscribers are incorporated, and such 397. Independent stipulation. Semble, subscriptions are afterwards made, although, that in assumpsit the defendant cannot, under by the charter, such subscriptions are required

in order to an organization of the corporation. [ized and competent to act as a corporate body Hall v. Vt. & Mass. R. Co., 28 Vt. 401. Vt. as early as the time prescribed. Bank of U. S. Central R. Co. v. Clayes, 21 Vt. 30. v. Lyman (U. S. C. C.), 20 Vt. 666. 3. A corporation may have such an exist- 9. Pleading. In a suit by a corporation ence by force of the act of the Legislature standing upon the general issue, the plaintiff is enacting it, as where the act incorporates cer- not required to make proof of its corporate extain persons by name, their associates and suc-istence. Such defense must be made by plea cessors,―as to be enabled to take a grant of in abatement, or in bar. Boston Type Foundry land, vesting in it the title, before it has such v. Spooner, 5 Vt. 93. Lord v. Bigelow, 8 Vt.

an organization as to enable it to enter upon 445. Etna Ins. Co. v. Wires, 28 Vt. 93. the transaction of its general business. Vt. 10. Estoppel. An execution debtor is esMining Co. v. Windham Co. Bank, 44 Vt. topped from denying, on habeas corpus, the le489. gal existence and corporate capacity of the

II. STOCK AND STOCKHOLDERS.

4. De facto. Where a subscription to the plaintiff a corporation-in whose name the capital stock of a corporation is made directly judgment against him was recovered. Sarto the corporation after it is organized, although geant, ex parte, 17 Vt. 425. informally, and while it exists as a corporation de facto, and is acting in its corporate capacity and under its corporate name, the subscriber cannot, in a suit upon such subscription, deny 11. Subscription and assessments. the legal organization of the corporation. Mont-Where one subscribed to stock in a corporation pelier, &c., R. Co. v. Langdon, 46 Vt. 284. in the name of others without authority, him5. Proof of. The certificate of commis- self making the prescribed payment, and aftersioners under an act creating a railroad corpor- wards assumed such shares, and the stock was ation, certifying, as required by the act, the set to him and the advance payments put to his amount of stock subscriptions, &c., was held, credit, he was held to occupy the position of an in an action by the corporation, conclusive as original subscriber. State ex rel. Page v. Smith, to the facts certified, so far at least as con- 48 Vt. 266. cerned the legal organization of the corporation. Conn. & Pass. R. R. Co. v. Bailey, 24 Vt. 465.

12. The charter of a railroad company required that 10,000 shares of stock should be subscribed for, before the making of any assess6. In a suit by a corporation against a stran-ment. That number was subscribed for, but ger, it is sufficient proof of the plaintiff's cor- the subscriptions had a condition that interest porate existence, to show a legal origin by their should be allowed and paid by the company on charter, and an existence de facto by their acts. all sums assessed and paid from the time of The production of their records is not neces- payment until the railroad should be put in sary. Searsburgh Turnpike Co. v. Cutler, 6 operation. In an action for assessments ;— Vt. 315. 11 Vt. 306. 28 Vt. 425. Held, that this provision was not an agreement

7. An act passed in 1832 incorporated, as a to reduce or pay back a part of the capital bank, such persons as should become subscrib-stock; that no time being fixed for the payers to its capital stock, and provided that the ment of such interest, it might be paid out of corporation "should take no benefit by the act, earnings after the road went into operation; and that the same should be wholly void, unless and that the subscription was not avoided therethe bank should commence and be in operation by. Rut. & Bur. R. Co. v. Thrall, 35 Vt. within one year after the passage of the same." 536.

In an action brought by the bank in 1838 upon 13. The issuing of preferred stock of a raila note given to it in 1837, the defendant plead-road corporation with guaranteed interest, is ed nul tiel corporation, and issue was joined. only a mode of raising money by pledging the Held, that the production of the charter, and original capital, and will not avoid a subscripproof that the plaintiffs were doing business as tion to the original stock. Ib.

a bank under the charter, and were exercising 14. The charter of a railroad company procorporate powers, was at least prima facie evidence that the requirements of the charter had been complied with. Bank of Manchester v. Allen, 11 Vt. 302 (contra, Wood v. Jefferson Co. Bank, 9 Cowen R., 194).

vided that the directors might require payment of the subscriptions to the capital stock, at such times and in such proportions as they should deem best. One condition of the subscription was, that no assessment should exceed ten dol8. Where the act incorporating a bank re-lars on a share. By one single vote of the diquired notice of the organization to be given by rectors sixteen assessments of five dollars each a certain day, and the bank was afterwards were laid, payable at different times. Held, found in operation under the act ;-Held, in that this was within the charter and the terms the absence of evidence to the contrary, that of the subscription. Ib.

the bank must be presumed to have been organ- 15. After the defendant's subscription to