Briggs v. Vt. Central Railroad

Pierpoint, J. This is an action on book. The principal item in the plaintiff’s account is a charge for building fence, and [213] the amount of it is much more than the balance found due to the plaintiff by the auditor, so that the controversy between the parties, here, arises upon that charge. It is insisted on the part of the plaintiff that this item should not be allowed, inasmuch as the original contract, under which the fence was constructed, was in writing and under seal. The general doctrine is well settled that the action on book is not the appropriate remedy to enforce a claim arising out of a contract under seal, but that this remedy is by action of covenant upon such contract. The auditor reports that the fence built by the plaintiff was built under a written contract under seal, dated February, 5, 1849. Taking this fact by itself it would seem that the objection of the defendants is well taken, but, when the whole report is taken together, it is apparent that the auditors did not intend that this statement should be taken literally, as 'they also find that on the 17th day of August, 1849, the parties made a material alteration in the terms of such contract, which alteration was evidenced by a writing signed by the parties and not under seal, and that at the end of two years when the original agreement by its own terms was to expire, the parties, extended the time of performance by the plaintiff, by a verbal agreement, and that after this last alteration the plaintiff built a large amount of fence in pursuance of it, the contract price of which would amount to more than the balance (exclusive of interest,) that the auditor has found due. So that all the auditor can fairly be supposed to have intended, is that the fence was constructed under the original contract as subsequently altered and modified by the parties. The question then arises, what is the effect of these alterations made in the contract. The rule is well settled that when a contract under seal is subsequently altered by the parties by a writing not under seal, or by a parol agreement, the whole becomes a simple written or verbal contract, and the rights, liabilities and remedies of the parties are thence forward to be determined by the same rules as are applicable to all simple contracts. It is apparent from the report of the auditor that the largest part of the fence built by the plaintiff, and more than he now [214] seeks to recover for, was actually constructed while the agreement between these parties in relation to it, rested wholly in parol. Such being the case, we see no reason why he should not recover in this form of action. The judgment of the county court is affirmed.