Stone v. Stone , 43 Vt. 180 ( 1870 )

The opinion of the court was delivered by

Barrett, J.

The defense to this action is put on the ground that the parties were tenants in common during the time the plaintiff was performing and doing what he claims to recover for. Clearly this cannot be maintained. The plaintiff acquired no title to the farm by the parol agreement under which he went to work upon it. A deed from his failer, the defendant, conformably to said pai'ol agreement, was necessary in order to create such a tenancy between them. If the defendant had deeded as he agreed to, the occasion and cause of the present suit would' not have arisen. But the defendant having refused to perform on his part the agreement in pursuance of which the plaintiff had done what he now claims to recover for, and what he thus did inuring to the benefit of the defendant, it seems clear on very common and familiar principles that the plaintiff should have pay of the defendant for what he thus did. He did it at the request of the defendant, and w;as to be compensated in a particular way. The defendant, refusing to compensate him in the way agreed, is liable to make compensation in money.

The principle of the decision in Graham v. Estate of Chandler, 38 Vt., 559, is applicable, in. this case; and in leading facts the cases bear a close analogy with each other. Counsel for defense, by his brief and argument, obviously did not rely on points of objection to particular items allowed by the referee and the county court, but on the broad ground above indicated.

We think the judgment was right, and it is affirmed.