Richardson v. Town of Concord , 40 Vt. 207 ( 1867 )

Tl¿e opinion of the court was delivered by

Barrett, J.

“ The defendant promised the plaintiff to pay him $700. town bounty, if he would enlist to their credit, payable when he should be mustered into the United States service. The plaintiff, accordingly, about September 1st, 1864, enlisted; was mustered in September loth, 1864, and passed to the defendant’s credit as one man upon the quota they were required to furnish. The town never lost the advantage of his credit, but retained it through the whole period of his enlistment, although the man was discharged before the period expired, and on the 7th of October, 1864.” This much is quoted from the bill of exceptions. This suit is brought to recover said seven hundred dollars. The plaintiff was discharged before joining- the army by reason of a supposed physical defect. The defendants claim before this court, in view of facts and evidence detailed in the bill of exceptions, that there was an express warranty by the plaintiff against such defect, and that said warranty was broken in such way as to disentitle the plaintiff to recover. If we could find from the bill of exceptions that the defendants made that point in the county court, it might perhaps be thought that there was error in the instruction to the jury, that the only defence to the plaintiff’s claim to be considered by them was the alleged fraud. But we are unable to find that defence was made in the county court on that ground. On the contrary the case shows that it was made solely on the ground of fraud on the part of the plaintiff in concealing and misrepresenting his condition. This is further indicated in the petition for g, new trial, which states that the defence was made for concealment by the plaintiff of his alleged breach, and in which the sole ground is newly discovered evidence bearing on the question of fraud. With reference to fraud, as ground of defence, we do hot understand it to be claimed that the court did not charge the jury correctly. The exception is taken to the portion of the charge in which the jury were told that, for the defence to prevail, they must be satisfied that the plaintiff knew something material about his health or soundness which he misrepresented or concealed, etc. This was proper with reference to the defence for the alleged fraud, but would not be proper with reference to an express warranty. We should have no difficulty in adopting the views of learned counsel for the defendants on the subject of scienter, if the alleged warranty was properly presented for our consideration.

It is often said, and has been often held, that the court ought to give correct instructions to the jury as to matters of law involved in the case as tried, without special request; and if, without specific requests for a charge, the court gives incorrect instructions, it may be made the subject of exception. But, in the present case, we think the presiding judge fully performed his duty when he correctly 'charged the jury as to the law in reference to the right and claim asserted by the plaintiff, and the defence asserted by the defendant, on the trial, and do not regard it error for him to omit to charge as to a defence which was not made, even if it should be thought that such defence might have been legitimately made ; nor for him to give instructions that were correct as to the defence that was, in fact, made, but would not. be correct as to a defence that might have been made on some other ground, but was not made.

As the case shows that the terms of the contract were literally fulfilled by the plaintiff, and that he answered on the quota of the town, and that the case was properly put to the jury on the subject of the fraud asserted in defence, this court finds no occasion to express views on other topics presented in the argument; and, therefore, refrains from discussing the subject of the rights and interests of the town in respect to such enlistments, and how far they would have the right to insist on the plaintiff’s soundness, .and fitness for' military service, beyond the point of his answering .on the quota assigned to such town.

The judgment is affirmed.

The petition for a new trial was not made the subject of argument, and we infer that it is not relied on. If it is, we think it cannot be sustained upon any view applicable to the subject.

The petition is dismissed, with costs.