Ripley v. Paige , 12 Vt. 353 ( 1839 )

The opinion of the court was delivered by

Royce, J.

— The written agreement described the sum therein mentioned as being the consideration, or agreed price for the farm, and for that only. And, hence, extrinsic evidence to show that any subject matter not legally appertaining to the farm, or parcel of it, was also to pass by the same contract, or upon the same consideration, would necessarily operate to vary the description and effect of that contract. The parol testimony, in the present case, so far as it was offered for that purpose, was therefore properly excluded. But the defendant offered further to show, that, when the written contract was entered into, and until after the conveyance was made, the rails, now in dispute, were distributed upon the farm for the purpose of being there erected into fence ; and the rejection of that evidence is also noted as a ground of exception.

The alleged condition of the rails, at the period in question, was a proper subject of proof, aliunde, provided it could be made material in effecting the operation of the written contract or the deed; in other words, if it should result, from their situation at the time, that they were manifestly intended to pass wijb the farm, as being substantially a part of it. Upon this branch of the case, we are inclined to regard the rails, if it was evident from the manner of their distribution upon the land, and other appearances, that they were designed for immediate use in fencing the land, as we should the materials of a fence accidentally fallen down, or of one purposely taken down to be immediately reconstructed, or those of an intended wall distributed in like manner. As fences always pass by a deed of the soil on which they stand, if the grantor has an unrestricted right to convey both, so we are disposed to think that such materials for a fence, may, in all these cases, as against, the grantor, be treated as being with-¡n the operation of his deed. But as the offer of the defendant was too general to be fully satisfactory, and as this question does not affect the whole property in controversy, we rest our decision mainly upon another point in the case.

jj. js stated that the defendant introduced evidence tending to prove, that, after the deed of the farm was executed, the plaintiff admitted that he had sold the posts and rails in question to the defendant. The court were requested to charge the jury, that, from such admission, they were at liberty to find a sale of the property. It is stated that the court refused so to charge, but instructed the jury that this evidence was not sufficient to prove such a sale, unless it referred to some contract distinct from the written agreement relating to the farm, and upon some other consideration. If it is conceded that the posts and rails were only to be regarded as loose chattels, (and in discussing this point we proceed upon that ground) the proposition contained in the charge would be legally correct; and yet, considered in connexion with the request which drew it forth, it would manifestly tend to lead the jury to an improper conclusion. The instruction asked was not that a sale of these articles, by force of the written contract, or by operation of the deed, or even upon the same consideration, might be found from the admissions, but simply that a sale might be found. The admission being general, not expressly referring to either of those instruments, the request, in substance, was, that it might be treated as evidence according to its terms. Now there is no probable ground to infer that the jury were further instructed, that, from the admission, unexplained, they might infer a sale distinct from the written contract; because, if that was a part of the charge actually given, we cannot suppose it would have been omitted by the court in certifying the exceptions, or indeed that any exception upon this ground would have been thought of. The charge would then have been substantially what was requested,and this, it is said, the court refused to give. The charge must, therefore, be understood to imply that vsuch independent contract of sale should be made to appear, and that by evidence beyond the admission itself. It was deciding, in effect, that to entitle the defendant to any benefit from the admission, it was incumbent upon him to show some contract, distinct from that in writing, to which the admission had particular reference. It seems to have been assumed that the confession referred entirely to written agreement, so long as no other and distinct contract was disclosed. We think the plaintiff was not entitled to such a presumption, from the evidence, and that the admission should have been left to have its proper influence,as such, unless explained and counteracted by other testimony. It should appear that it did, in fact, refer to the written contract, or to the deed, if the plaintiff would seek, upon that ground, to obviate its effect. And if the fact admitted was inconsistent with the legal operation of the written agreement and the subsequent conveyance, the admission might surely be taken, in the absence of evidence to explain it, to have referred to some contract of sale which was effectual to pass the property.

Judgment of the county court reversed.