Clifford v. Richardson

The opinion of the court was delivered by Royce, J. After a cause has been referred by rule of court and a trial had before the referee, it is too late, upon the coming in of his report, to question the legal sufficiency of the declaration. Jewell v. Catlin, Brayt. 215. At that stage of the case the court is only to be satisfied, that the referee has confined himself to the cause of action, on which the declaration is founded. It is considered, that the entire cause of action, upon its merits, is referred, and not any mere issue made by the pleadings, unless the terms of reference are so limited. And hence, if the reference of the cause is general, it will be no valid objection to the report, that the referee acted upon a view of the subject not strictly within the scope of the declaration, provided the declaration might legally have been so amended, as to embrace the subject in that view. Thus in Eddy v. Sprague, 10 Vt. 216, the declaration counted in assumpsit upon the warranty of a horse, and the referees reported in favor of the plaintiff, on the ground of false and fraudulent representations, made at the time of sale. It was considered, that the declaration might have been amended by adding the scienter, so as to have enabled the plaintiff to recover on proof of the fraud, according to what was said in Shepherd v. Worthing, 1 Aik. 193. The report was accordingly accepted and judgment rendered for the plaintiff, though the evidence to prove the fraud had been objected to by the defendant and the referees had received it subject to the opinion of the court. That decision furnishes authority much beyond what the present case requires; for we consider, that, under the first count of this declaration, without amendment,'the matters shown as grounds of recovery would have been admissible in evidence upon a trial in court. The loss of the use of the mill, whether wholly, or partially, as also the expense of altering and repairing it, are within the direct allegations of damage and injury contained in that count; and nei [626] ther can properly be regarded as a remote or collateral damage, for which there is no remedy. They were consequences, which the parties must have anticipated, if the defendant failed to fulfil his contract. It is urged, however, that no recovery should be had for the former, because it does not appear, that any definite time was fixed by the contract for the defendant’s work to be completed; nor for the latter, because the plaintiff refused to permit the defendant to make the requisite alterations and repairs. " But if no time was expressly limited by agreement, it should be taken, that the parties intended a reasonable time, in reference to the nature and extent of the work to be done by the defendant and to the plaintiff’s progress in completing the other parts of the mill. Now it appears, that the defendant made his contract in the spring of 1840, and that he left the mill in September after claiming to have fully performed his undertaking, and that in October the mill was put in operation. The referee must have considered, (for the report implies such a finding,) that a reasonable time for doing the work had then elapsed ; and, indeed, the defendant has precluded .himself from contending to the contrary. From that time, therefore, until the necessary alterations could be made, the plaintiff had a right to insist upon that measure of benefit from the mill, which a proper execution of the defendant’s contract would have afforded him. And taking into view the season of the year, the time required for a satisfactory test of the work, as the defendant left it, and the period probably consumed about the arbitration, there does not seem to have been an unreasonable delay, on the plaintiff’s part, in making the alterations. And, moreover, the referee has not found the delay to have been unreasonable. But the defendant still contends, if damages were recoverable on this ground, that they were found without legal and admissible evidence, — the referee having acted upon evidence of opinion merely. The general rule certainly is, that witnesses are to testify to facts, and not to give their individual opinions. This rule, however, has its exceptions, some of which are as familiar and as well settled as the rule itself. When all the pertinent facts can be sufficiently detailed and described, and when the triers are supposed to be able to form correct conclusions without the aid of opinion, or judgment from others, no exception to the rule is allowed. But cases occur, where [627] the affirmative of these propositions cannot be assumed. The facts are sometimes incapable of being presented with their proper force and significancy to any but the observer himself, — as in cases involving the question of sanity; to which may be added that of a settled affection, or dislike, towards a particular person. McKee v. Nelson, 4 Cow. 355. And it often happens, that the triers are not qualified, from experience in the ordinary affairs of life, duly to appreciate all the material facts, when proved. Under these circumstances the opinions of witnesses must, of necessity, be received. It is true, that, except in cases involving an estimate of the value of property, or of its use, the instances of admitting such evidence, on the latter ground here stated, are said to be limited to matters of professional science, art, or skill. But this restriction has not usually been applied in a rigid and narrow sense. “ In general, where-ever thé inference is one of skill and judgment, the opinion of experienced persons is admissible; for by such means, only, can the jury be enabled to form a correct conclusion.” 1 Stark. Ev. 153. And it was laid down by Phelps, J., in Lester v. Pittsford, 7 Vt. 161, that — “ The testimony of opinion may be given, where, from the general and indefinite nature of the enquiry, it is not susceptible of direct proof.” We have no doubt, that, upon these grounds, the evidence was properly received. There can be no objection to the plaintiff’s right to recover for making the alterations in the mill, unless the defendant was, at that time, entitled to treat the contract as being still executory on his part. But it is clear, that such an inference is not fairly deducible from the report. He had long before pronounced it an executed, contract, and it proved to have been executed imperfectly, — in other words, violated. It is not unusual, to be sure, for artizans to stipulate, that if their work proves to be defective upon trial, they shall have the opportunity to make the necessary improvements. But no such stipulation appears to have formed a part of the contract in this instance, and we are not at liberty to engraft it upon the contract, as a matter of general law. And since the contract had ceased to be executory in the ordinary and proper sense, when the defendant’s offer to make the alterations was refused, there is an obvious and wide difference between this and that of Sutton et al. v. Tyrrell, 12 Vt. cited for the defendant. There the contract was in the regular [628] course of execution, when one of the plaintiffs (possessing, for that purpose, the legal power of both) interdicted and discharged its farther execution. The present case has a nearer resemblance, upon this point, to that of Lantry v. Parks, 8 Cowen 63, where the plaintiff, having abandoned his contract of service without cause, after-wards offered to resume the performance'of it, and the offer was refused by his employer. It was held, that the refusal was justifiable, and that the plaintiff must abide the consequences of his previous violation of the contract. The conclusion is, that the defendant’s offer had no effect to abridge or change the rights of the plaintiff,— that the alterations were not even necessary, in order to render the cause of action perfect, — and that they have merely served to ascertain a portion of the damages, which must otherwise have ■ been settled by estimation. Nothing is required to be said in reference to the award of arbitrators, on which the second count of the declaration was founded. For if the award was valid, the report of the referee is sustained by it; and if invalid, the plaintiff was left at liberty to assert his claims under the first count. Judgment of county court affirmed.