Gifford v. Willard

[38] The opinion of the court was delivered by Rowell, J. The defendant having repudiated his verbal contract for the sale of his farm to the plaintiff, cannot invoke the aid of the Statute of Frauds to enable him to retain what he received of the plaintiff under it, and in part performance thereof. Hawley v. Moody, 24 Vt. 603. The filing of pleadings out of time is a matter of discretion, and the action of the County Court" in that behalf is not revisable here. Proof of the justice’s judgment was pertinent to the issue formed by traversing the replication to the plea in offset, and its admission was not error. It is not like the admission of improper evidence and then attempting to charge it out. It does not affirmatively, appear that defendant was disallowed the five dollars loaned, which plaintiff admitted he was entitled to recover. The jury returned a general verdict for plaintiff for $8.50, and a special verdict that defendant recover nothing under his plea in offset. The statute l’equired'the jury to find such sum as should be in arrear from either party, and we cannot say they did not do it. This matter was brought to the attention of the County Court by a motion to set aside the verdict and for a new trial, which the court denied. It must be presumed, therefore, that that court was satisfied that no error of this kind had been committed, and that defendant had in fact been allowed the $5.00, although the special verdict did not indicate it. That court could determine much better than we can how that was, and it is better that the matter be left where it is rather than that hostilities be renewed over so small an affair. Judgment affirmed.