Camp v. Barker

By the Court. This court, in a recent case in the county of Windsor, Whitcomb v. Wolcott, [ante, page 368,] gave a very decided intimation to the profession, that they could not follow those English or American cases, where, upon motion in arrest of judgment, the courts have refused to make all reasonable intendments in favor of the sufficiency of the finding of the jury. Among these reasonable presumptions, upon a general verdict, the most important is, that the jury did find all the facts alleged in the declaration, and all others^ reasonably inferable from "them. The result of all this seems likely to be, that, if any of the counts in the declaration are sufficient to sustain the verdict, it will be sustained, unless it some way appear, that the finding did proceed upon the defective count. It is a remarkable fact in English jurisprudence, and in that of a majority of the American states, that while in an indictment for crime, affecting a man’s liberty, and even life, if it contain one defective count, among others which are sufficient, upon a general verdict the court consider it as rendered upon the good counts, upon the very natural inference, that a general verdict finds all the facts alleged in the declaration, yet in an action upon contract judgment is arrested for one defective count, upon the ground, that the verdict may have passed upon that count. It is the pertinacious adoption and perpetuation of such gross absurdities and inconsistencies, which tend so'obviously to bring all special pleading into disrepute. To apply that rule to the present declaration would leave no doubt whatever. And even upon the old rule it seems to us, that neither of the objections of the defendants is well founded. The case of Myrick v. Slason et al., 19 Vt. 121, establishes the point, that so long as the parties profess to proceed under the contract, no 472 recovery in assumpsit can be had for any labor performed under the contract. The remedy must be by an action upon the contract. And the omission to allege, that the estimates were made by the engineer, is sufficiently answered by the allegation, that it was the defendants’ duty to have that done; upon the declaration, that must be taken to be the contract. If so, it could hardly be said to be a condition precedent to the plaintiffs’ right of action. But if it really were so, it will always excuse the performance of a condition precedent, even, that the performance was hindered by the other party. It is expressly alleged to be the fault of the defendants, that the estimates were not made. But here another excuse is alleged, that the defendants actually received the money for this work, which, by the contract, they were bound to pay, when received, even if no estimate had been made, and that, upon request, the defendants refused to pay to the plaintiff the money, which they had so received for the work performed by him. Judgment affirmed.