Freeman v. Henry ( 1876 )

The opinion of the court was delivered by

Boss, J.

So much of the declaration as the defendant’s pleas did not answer we think must be taken as admitted in this class of cases. Buel v. Briggs, 15 Vt. 34.

The defendant’s second special plea purports to answer the whole declaration. Inasmuch as the plaintiff joined issue on this plea, and went to trial on it as it stood, if this issue had been found for the defendant, it may be that the defendant would have been entitled to judgment in his favor. The court below, as we think, correctly held that the defendant failed to produce any testimony which fairly tended to support this plea. The most that can be claimed for Mr. Henry’s testimony is, that it inferentially, in some portions, tended to support this plea. His direct testimony, both in chief and on cross-examination, was, that there was nothing said when the change in the location of the stairs was agreed to, about their width. Taken altogether, we do not think that it can be fairly said that his testimony tended to support this plea. No point was raised in the court below on the question of damages.

Judgment affirmed.