Held, that the plaintiff, not being a party to the the purchase was made on a six month's credit. papers, was not precluded from proving an Linsley v. Lovely, 26 Vt. 123. additional and suppletory agreement by parol, 66 469. Where a bill of sale, or invoice, accomthat as part of the consideration of the deed panies the delivery of goods, it may neverthe($3,000) the defendant agreed to pay the plain- less be shown by parol that the goods were tiff said debt of A. Wait v. Wait, 28 Vt. 350. delivered and received by way of consignment. 465. Where the indorsee of a promissory Hayward Rubber Co. v. Duncklee, 30 Vt. 29. note, after the same had fallen due, took of the 470. The plaintiff purchased butter of the maker a mortgage to secure the payment of the defendant, and the following paper was made note in the terms of it; -Held, in an action on the occasion, and was signed by the defendagainst the indorser, that he could prove a pre- ant: 'Stamford, Jany. 10, 1860. Elias K. vious parol agreement between the parties to the Carpenter. Bill of butter; 72 lbs. @* mortgage to extend the time of payment, in 603 lbs. gross. Tare, each 11 lbs., making. consideration of the giving of the mortgage, Received payment for the above butter, as though variant from the terms of the mortgage; weighed at Weld's store. Elias K. Carpenand could use such agreement in defense as a ter." Held, that the paper imported no contract release of his liability as indorser. of sale, there being in it no words of sale, nor Huntington, 40 Vt. 488. name of purchaser, nor of the defendant as a 466. Collateral agreement. While the seller, but was a mere memorandum of weight plaintiff, a physician, was attending upon the of butter, and that the defendant had received father and mother of the defendant, under a payment of some one not named; and that the contract with the father that if there was no plaintiff was not prevented by it from proving, cure there should be no pay, the defendant by parol, the contract of sale, and a warranty gave the plaintiff a writing by which he agreed of the quality of the butter. Houghton v. Carthat he would "be holden" to the plaintiff "for penter, 40 Vt. 588. Morse v. the payment of his bill for medicine and attend- 471. Order. The plaintiff gave the defendance" upon the father and mother. Held, that ant an order, as follows: "H. H. Spafford: this undertaking was collateral to the contract Please pay S. Merrill the extra pay due me of the father, and that this contract could be from the State of Vermont, after paying yourproved by parol; and that, having failed to self what may be due you, until further notice. "cure," the plaintiff could not recover on the Hy. Allen." Held, to be a mere direction as to guaranty. Smith v. Hyde, 19 Vt. 54. the appropriation of the money, and, beyond the sum then due the defendant, does not create or fix a debt on the plaintiff to the defendant or Merrill; and that the consideration and object and purpose of the parties are open to parol evidence on both sides. Allen v. Spafford, 42 Vt. 116; and see Perkins v. Adams, 30 Vt. 230. 467. Bill of sale. A quantity of scrap iron had been contracted, by parol, to be sold by the plaintiff's agent to the defendant, by weight. The iron was afterwards weighed off for delivery by the plaintiff in the absence of the agent. The plaintiff claimed that the iron should be computed at net weight-the defendant, at gross 472. Part of contract not intended to weight; and the defendant represented that be in the writing. Where it is satisfactorily such was the special contract with the agent, shown that, for any reason, the parties to a and agreed that if this was not right he would written contract did not intend to reduce the make it right when they could see the agent. The plaintiff thereupon executed a bill of sale of the iron, computing it therein at gross weight. Held, in an action for the price, that the plaintiff was not concluded by the bill of sale, but could prove by parol evidence, that by the contract with the agent the iron was to be computed at net weight. Edwards v. Golding, 20 Vt. 30. 27 Vt. 175. whole contract to writing, and the portion omitted is consistent with the writing, such omitted part may be proved by parol evidence. Winn v. Chamberlin, 32 Vt. 318. 473 So, where the writing by its terms contemplates a subsequent supplemental agreement, such subsequent agreement by parol may be proved. Field v. Mann, 42 Vt. 61. 474. Consideration. The consideration 468. The defendant purchased goods and of a written contract may be proved by parol. took a bill of them, as: "A. B.-Bought of Smith v. Ide, 3 Vt. 290. Phelps v. Stewart, 12 C. D.-Six per cent. off for cash." Then fol- Vt. 256. Patchin v. Swift, 21 Vt. 292. Troy lowed a list of the articles and prices. Held, Academy v. Nelson, 24 Vt. 189. Gregory v. that this bill of sale did not import a contract;| Gleed, 33 Vt. 405. that it was given, not to express a contract, 475. In an action upon a written contract, but in consequence of one having been pre-expressing a mere naked promise and requiring viously made; that it was simply declaratory parol proof of consideration, the plaintiff's eviof a fact, and out of this, with other things, dence may be met by parol proof of the real the contract must be made; and that the defend- consideration; and proving that may prove the ant was not precluded by it, from proving that contract, taking into consideration the un 66 written as well as the written part of it." Per-to A B, "President, Detroit, Michigan" ;—Held, kins v. Adams, 30 Vt. 230. Allen v. Spafford, that it might be shown by extraneous evidence 42 Vt. 116. for whom the letter was intended, by showing 476. Ambiguity from extrinsic matters. that A B was president of the plaintiff bank, To ascertain the intent of the parties in enter- and thus authorize a suit thereon in the name ing into any contract or agreement, in a case of such bank. Michigan State Bank v. Pecks, where that intent upon the face of the instrument 28 Vt. 200. is doubtful, or the language used will admit of 484. The grantor in a deed reserved all the more than one interpretation, the court will free stones on the land, with the privilege of look at the situation and motives of the par- carrying off said stones. The question being ties, the subject matter of the contract or agree- whether this extended to the stone of a ledge ment, and the object to be attained by it, and under ground;-Held, that parol evidence was will allow these circumstances to be shown by admissible to show the situation of the property parol evidence, notwithstanding the contract at the date of the deed, as that there were 30 to itself is in writing. Kellogg, J., in Wing v. 100 tons of free stones then lying on the land, Cooper, 37 Vt. 178. Lowry v. Adams, 22 Vt. disconnected from any fixed ledge, and that 160. this ledge was not then known; and this being proved, - held, that the reservation did not embrace the stone in the ledge. Putnam v. Smith, 4 Vt. 622. 44 Vt. 207. 477. Whenever any ambiguity in the language of a written contract arises from extrinsic matters, or when, from the language used, the object or extent of the contract cannot be 485. Parol evidence is admissible to give determined, parol evidence is admissible to an application of a written contract to its subremove that ambiguity, and ascertain the object|ject matter, in cases in which the thing, as exupon which the contract was designed to oper- pressed, is applicable indifferently to more than Isham, J., in Noyes v. Canfield, 27 Vt. one subject. Hart v. Hammett, 18 Vt. 127. 85. Rugg v. Hale, 40 Vt. 144. 486. In an action for the non-delivery of 478. Where the words of a written agree- oil, equal to a sample, purchased under a ment were open to either one of two construc-written contract calling for "winter-strained tions;-Held, that the intent might be shown lamp oil," evidence of the meaning of these by extrinsic and parol evidence. (What that words as generally used by dealers in oil was evidence was, does not appear in the report.) properly introduced, from which it appeared Wing v. Gray, 36 Vt. 261. ate. that they applied indifferently to winter-strained sperm lamp oil, and to winter-strained whale lamp oil, and that the latter was inferior in quality to the former. The latter was delivered under the contract. Held, that the defendant was properly allowed to prove, that at the time the written contract was executed, the defendant informed the plaintiff that the sample and the oil he was selling was not sperm oil. Ib.— Approved, 40 Vt. 466. 479. An order drawn by A on B was in this form: “Please to let C have $30, and that will be your discharge from me in full of our accounts." Whether this was an assignment of the debt to C, or created a mere agency to receive and hold for A's benefit, was properly left to the jury to be found, in connection with the circumstances proved. Harrington v. Rich, 6 Vt. 666. 480. Terms-Phrases. In order to deter- 487. The defendant, a forwarder, contractmine the force of terms used in a written con-ed with the plaintiffs in writing to transport tract, we must frequently resort to proof of their freight," during the navigable season, at the circumstances attending the transaction, a stated price per ton, "wool excepted, except although not specified in the writing;—as, in at special rates." In an action for a refusal to a contract to "convey" land, that both parties transport pressed hay under the contract ;understood that the premises were leasehold, Held, that, for the interpretation of this general and that only a leasehold title could be obtained. Lawrence v. Dole, 11 Vt. 549; and see Conn. & Pass. R. R. Co., 32 Vt. 805. 481. Where a letter was directed to "J W," evidence was held admissible to prove it intended for E W, and the letter was received in evidence against the writer. Wilkins v. Burton, 5 Vt. term "freight," as understood by the parties, parol testimony was admissible in defense, to prove the situation of the parties at the time of making the contract, and the nature, extent and character of the plaintiff's freighting for several years previous,-as, that the defendant had been familiar with the plaintiffs' freighting business and had done it for them under similar 482. Parol evidence is admissible to show contracts; that the plaintiffs had never before that by certain marks or characters appended dealt in hay to be freighted, and that hay could to his name by the cashier of a bank, the word not be transported at less than double the rates cashier was intended. Farm. & Mech. Bank named in the contract, &c. Noyes v. Canfield, v. Day, 13 Vt. 36. 27 Vt. 79. 76. 483. Where a letter of credit was directed 488. The conditions of a railroad subscription required the extension of the road to Derby work for the fronts and wing walls of a railLine. Held, that the court would take judicial road tunnel, at a set price per superficial foot, notice that there was such an incorporated town to be measured in the walls after laid, "all the as Derby, and as the railroad charter, a public face of the work that shows to be measured, act, fixed the north line of Derby as the ter- and none else." In the proper performance of minus, the term, Derby Line, upon the face of the contract the plaintiff cut, dressed and finishthe contract, must be construed to mean the ed not only the drop, or perpendicular face of north line of the town. But evidence was ad- the wall, but also the horizontal surfaces of the mitted that on the north line of the town was a trend, or slope of the walls which receded by village, universally known and called "Derby steps, and of the coping stones, and claimed Line." Held, that an ambiguity was thereby payment for such horizontal surface work raised as to the place intended by that term, under the contract. Held, that parol evidence which presented a question of fact to be deter- of the meaning of the words, 'face of the mined by the jury upon proper evidence. work," as used in the trade was proper; but, Conn. & Pass. R. R. Co. v. Baxter, 32 Vt 805. the meaning of the words being thus ascertain489. Parol evidence, not conflicting with ed, that evidence of what was said by the parnor changing the sense of a written agreement, ties during the negotiations before the execubut only showing to what it was intended to tion of the written contract, as to how the apply-explaining and identifying the subject measurement should be made, or what face matter of it by attending circumstances-is ad-measurement meant, was properly excluded. missible. [This applied to the case of what St. Martin v. Thrasher, 40 Vt. 460. See 18 was named in the writing as "contracts" for Vt. 127. 27 Vt. 79. 40 Vt. 138. cloth boards.] Bradley v. Pike, 34 Vt. 215. 494. To identify subject matter. The 490. Where two parcels of land were cover-identity of the subject matter of a deed, or grant, ed by the same mortgage, and one of them was rests in parol. Patch v. Keeler, 27 Vt. 252. sold "subject to the mortgage," as expressed in 495. by concurrent act. Where, in a the advertisement and deed;-Held, that this written description of land, an uncertainty phrase is of doubtful meaning and susceptible arises, not from the terms used but from their of two interpretations, viz: subject to the pay-application to the subject matter in its nature ment of the whole mortgage debt, or subject to and situation, oral evidence is admissible in excontribute its just proportion with the other planation—as, of the survey actually made and parcel; and that parol evidence was admissible monuments erected. Patch v. Keeler, 28 Vt. 332. to show the sense in which the language was used. [This evidence included declarations made on the occasion of the sale.] Merrill v. Cooper (chancery appeal), 36 Vt. 314. 496. Thus, where the setting out of dower by commissioners was of "three rows of apple trees on the west side of the orchard, running north and south in the centre between 491. In the sale of a farm, stock, and farm the third and fourth rows," and the question property, a memorandum of the sale was exe- was whether two trees, the westernmost standcuted by the seller, in which, after enumerating ing in a line, should be counted as a row or not; sundry articles and farming tools, was added: -Held, that such evidence was admissible. Ib. "Meaning all the farming tools, &c., now own- As to evidence in particular actions, see the ed by me, and on said farm.' The question appropriate titles, -as ASSUMPSIT; COVENANT; being whether certain milk pans, used in the TRESPASS, &c.;-in particular transactions, see management of the farm as a dairy farm and CONTRACT; DEDICATION; FRAUD, &c.;-08 not specifically named in the memorandum, affected by the pleadings, see PLEADINGS. EXCEPTIONS. I. TAKING, SIGNING AND FILING. passed by the sale;-Held, that the term 492. But held, that parol evidence was not admissible to prove that certain grain, raised upon another farm, was included in the purchase and intended to be conveyed. Ib. 493. The plaintiff made a written contract with the defendant to cut and fit all the stone II. IV. V. REQUISITES OF bill as to ReferENCE AND ENTRY IN SUPREME COURT ; EFFECT; DIS CONTINUANCE. CONSTRUCTION OF BILL OF EXCEPTIONS. I. TAKING, SIGNING AND FILING. 1. When exceptions lie, in general. Exceptions lie to to every decision of the court upon a question of law, as well where the issue office within 30 days after the rising of the of fact is to the court, as where it is to the court (G. S. c. 30, s. 57), they cannot afterjury. Nash v. Harrington, 1 Aik. 39. wards be filed nunc pro tunc, and cannot be 2. Rule as to time of taking exceptions. considered in the supreme court. Higbee v. Exceptions to a charge must be taken at the close Sutton, 14 Vt. 555. Nixon v. Phelps, 29 Vt. of the charge, and before the jury retire. State 198. v. Clark, 37 Vt. 471. 12. Nor will a writ of error lie thereon, 3. Rule of county court. Where a rule of they not being part of the record. Small v. the county court required all exceptions to be Haskins, 30 Vt. 172. taken and noted, and the judge certified in the 13. Where a declaration on book was filed in exceptions other points than those ;-Held, that offset, and to a judgment on the report of the aualthough the judge was not bound to certify ditor exceptions were duly filed by the defend any other points than those noted, yet he might ant; -Held, that such exceptions could be enproperly do so, if satisfied that the matter tertained so far as the judgment of the county merited further consideration. Steele v. Bates, court for the ultimate balance was affected 2 Aik. 338. thereby; but that they did not uphold excep 4. The rule of the county court requiring tions taken upon trial of the other branch of exceptions to the charge to be taken before the the case [the original action], which last excepjury retire, is one of practice merely, and can- tions were not seasonably filed. Nixon v. not be regarded in the supreme court; and Phelps, 29 Vt. 198. when any question arises on the charge, and 14. The statute requiring exceptions to be the court below allows exceptions and spreads filed with the clerk within thirty days after the the charge upon the record, the supreme court rising of the court, has reference only to that is bound to revise all questions made in regard term of the court at which final judgment in to such charge, although not excepted to at the the case is rendered, and not to some previous time, and application to allow exceptions was term when some interlocutory judgment was only made after the jury had rendered their rendered. Thetford v. Hubbard, 22 Vt. 440. verdict. Buck v. Squiers, 23 Vt. 498. STATEMENT. 5. It is not error for the county court, after II. REQUISITES OF BILL as to Reference AND verdict, to allow an exception not before taken, that upon the evidence the plaintiff was not entitled to recover. Williams v. Heywood, 41 Vt. 279. 15. The judge, in drawing up a bill of exceptions, certified that his charge upon a certain point was the same as in another case named. Held, well enough; it was but making a copy of the charge in the other case a part of this. St. Johnsbury v. Waterford, 15 Vt. 692. 16. Where two bills of exceptions were placed upon the record, and they were contradictory;-Held, that, neutralizing each other, this was equivalent to a refusal to charge, and the judgment was reversed. (Redfield, J., contra, thinking that the bill last allowed superseded the first.) Briggs v. Georgia, 12 Vt. 60. 6. Exception to entire charge. The county court may and ought to refuse an exception to the entire charge to the jury; and counsel should always be required to specify the particular points in the charge, or in the omission to charge, to which they take exceptions, and they should do this before the jury leave their seats. Goodwin v. Perkins, 39 Vt. 598. 7. Where an exception is to the judgment of the court upon the evidence detailed, and the evidence does not warrant the judgment, the respondent has the benefit of the defect under 17. Depositions or papers filed as evidence this exception, although not particularly alluded to before the case was submitted. State v. Gilbert, 36 Vt. 145. 8. Signing. A bill of exceptions signed by the assistant county judges, instead of the presiding judge, was dismissed on motion. Small v. Haskins, 29 Vt. 187. (G. S. c. 30, s. 57.) 9. A writ of error based upon a bill so signed, was dismissed, for that it was no part of the record. Small v. Haskins, 30 Vt. 172. 10. The judge who presided at the trial may correct a bill of exceptions, nunc pro tunc, after his time of office has expired. Lyons v. Rood, 11 Vt. 165. Contra, Phelps v. Conant, 30 Vt. 277. (Now allowed by G. S. c. 30, s. 58.) in the court below are no part of the record, and cannot be regarded as such in the supreme court, except as the facts therein are stated in the exceptions or the case agreed. Sargeant v. Leland, 2 Vt. 277. 18. All papers in a case belonging to the files in the county court, as the record, writ, service, pleadings, &c., are always treated as part of the case in the supreme court on exceptions, though not specially referred to in the exceptions as part of the case. Frost v. Bates, 16 Vt. 145. Wheelock v. Sears, 19 Vt. 559. Other documents and writings, used on the trial as matters of evidence, must be specially referred to and made a part of the case, or they will not be noticed. Wheelock v. Sears. Sar 11. Filing. If exceptions taken in the county court are not in fact filed in the clerk's geant v. Leland. 19. Copies of all papers referred to in a bill case may at once pass on exceptions to the of exceptions, not belonging to the files in supreme court, without any judgment rendered court, should, properly, be attached to the bill as to the trustee. Ib. of exceptions before signing it. Unless attached 27. No civil cause can pass to the supreme to the case, the excepting party must see that court until after final judgment in the county such copies are furnished, or he cannot be heard court. Exceptions taken on the trial-as to an in support of his exceptions, and the judgment interlocutory ruling or judgment-must be below must be affirmed. Frost v. Bates, 16 Vt. filed, and lie to await the final judgment. If 145. Fish v. Field, 19 Vt. 141. brought into the supreme court before final 20. The party who tenders a bill of excep- judgment, the case will be treated as a mistions must, at his peril, place so much there as entry, and be erased from the docket. Gage shows that the county court did err. This v. Ladd, 6 Vt. 174. Fisk v. Herrick, 10 Vt. must be made to appear affirmatively, either by 67. Finney v. Hill, 10 Vt. 264. stating definite law points arising and decided, Note. Since Rev. Stats. 1840, corresponding or by stating the whole evidence, the legal with G. S. c. 30, s. 56, this ruling has been import of which is embraced in the decision, departed from;—as, in Mosseaux v. Brigham, 19 and, in such case, it must appear to be the Vt. 457, where exceptions were taken to allowwhole; for the presumption is that the judg- ing a justice suit to be entered on petition, and ment below is correct until the contrary appears. before trial or judgment the exceptions were Richardson v. Denison, 1 Aik. 210. Eaton v. heard and the decision affirmed, and the case Houghton, 1 Aik. 380. Adams v. Ellis, 1 Aik. remanded to be proceeded with to trial; but 24. Stearns v. Warner, 2 Aik. 26. Green v. this objection was not there taken; so in Donaldson, 16 Vt. 162. McDaniels v. McDaniels, where a verdict for the 21. An objection to a tax sale and proceed- plaintiff was set aside for misconduct of the jury ings "for other defects on the face of the and exceptions taken thereto [principal case papers, apparent of record," is too indefinite reported, 40 Vt. 363]. This was heard and and vague for consideration. Wing v. Hall, 47 argued January T., 1867, on defendant's motion Vt. 182. III. ENTRY IN SUPREME COURT; to strike off the case as a mis-entry, because the case was not ended in the county court. The EFFECT; motion was denied, and the exceptions were heard at General Term, 1867,-the court treating the question as one of discretion. See In Excep- re Cooper, 32 Vt. 254. Tarbell v. Downer, 29 Vt. Probate Court v. Brainard, 48 Vt. 620. Effect as to the judgment. An action 22. After final judgment below. tions are not to be entered in the supreme 339. court, until the next term after a motion for a 28. new trial in the county court has been there lies upon a judgment of the county court, disposed of. Stimpson v. Cummings, 15 Vt. 787. 23. Before a case can properly come into the supreme court on exceptions, there should be a full and perfect judgment in the county court. Probate Court v. Chapin, 31 Vt. 373. although exceptions thereto were taken, but without stay of execution, and they are pending in the supreme court. Tarbell v. Downer. 29. The plaintiff recovered judgment below; the defendant excepted, but execution was not stayed, and the defendant neglected to prose24. On an issue of fact joined in the county cute the case on his exceptions. Held, that the court, the court found and stated the facts in a judgment should be affirmed with costs to the bill of exceptions, with a judgment in the alter- plaintiff, unless he had been notified in writing native, that if the supreme court should be of before the term that the suit would be abanopinion that the plaintiff was entitled to recover doned. Kelly v. Haskell, 19 Vt. 602. the full sum claimed, then the defendant consents 30. In like case ;-Held, that such notice in that such judgment shall be entered; but, other-writing must be given at least twelve days wise, for a less sum. Held, that the supreme before the term, in order to avoid an affirmance court could not enforce such rule; and they with costs; but that the defendant might elect declined hearing the case, until the exceptions to be heard on his exceptions. Allen v. Hard, should show an absolute judgment rendered for 19 Vt. 606. one of the parties. Day v. Essex Co. Bank, 13 Vt. 115. 31. Discontinuance. Where exceptions are allowed by the county court, with stay of 25. A case may properly pass to the su- execution, and the exceptions are actually filed, preme court on exceptions, whenever it is so the excepting party cannot abandon them, so far ended in the county court that, if no excep- as to prevent an affirmance of the judgment in tions were taken, it would go out of court. the supreme court. Batchelder v. Tenney, 27 Hayes v. Stewart, 23 Vt. 622. Vt. 784. 26. In a trustee suit in the connty court, 32. The death of a party pending exceptions where there is judgment for the defendant, the in the supreme court, and representation of |