Town of Westminster v. Willard

The opinion of the court was delivered by ROWELL, J. The defendants demurred in their answer for want of equity and for that the orator had an adequate remedy at law. The demurrer was seasonably brought on for hearing, when it was overruled, the bill adjudged sufficient, and an injunction ordered to issue, restraining the further prosecution of the defendant Willard’s suit at law. Thereupon a special master was appointed, and the case proceeded to hearing before him on the merits, and on the coming in of his report a decree was entered for the orator, making perpetual the preliminary injunction. The defendants now seek to avail themselves in this court of the question of jurisdiction raised by the demurrer. To this the orator objects that by going to trial on the merits after their demurrer was overruled, they waived their demurrer, and cannot now raise the question of jurisdiction. It used to be the practice when the demurrer was contained in the answer, not to bring it on till the case was heard on the merits, but to hear it then, and on appeal the whole case went up, demurrer and all. But latterly a new practice has been adopted, and now the demurrer must be brought on before the case is heard on the merits, otherwise it is waived, and the party loses the benefit of it altogether. This, although quite an innovation, is deemed the better practice, for obvious reasons. The practice used to be, also, when a demurrer to the whole bill was overruled, to order the defendant to answer, [270] unless he obtained leave to put in a less extended demurrer or to plead, 1 Danl. Ch. Pr. 675* ; 1 Smith’s Ch. Pr. [*213] ; and the court might, and often did, for good reason, reserve the right to raise the same question at the hearing. Jones v. Skipworth, 9 Beav. 237 ; Norman v. Stiby, 9 Beav. 560. But under the new rules in chancery, when a demurrer is overruled the bill should, regularly, be taken as confessed, and the matter thereof be proceded in and decreed accordingly if it can be done without an answer and is proper to be decreed; but if a discovery is required to enable the complainant to obtain a proper decree, the defendant will be ordered to answer as far as necessary for that purpose. Rule 17. Under this rule, considered with reference to the former practice, we think it a fair implication that when the court of chancery, on overruling a demurrer to the whole bill, does not take the bill as confessed, but proceeds to appoint a master to try the case on its merits, as was done in this case, it intends to reserve the benefit of the demurrer till the hearing; otherwise, it is presumable that the court would have taken the bill as confessed, as the rule requires. This, we think, is in accord with the general notion of the profession, and in line with the practice that so long obtained of not treating the demurrer as waived by going to trial on the merits. In changing from one practice to another not fully defined and well understood, the analogies of the old practice should be observed as far as necessary to prevent surprise and to preserve to parties the benefit of the substantial legal questions involved in the case. There are several ways open to the defendant when his demurrer is overruled. He may let the bill be taken as confessed under the rule, and take the case up on demurrer ; or he may ask leave to withdraw his demurrer, or to waive it, and to go to trial on the merits ; or he may ask to have the benefit of the demurrer reserved to him till the hearing. If it is reserved, the better practice would be, of course, to [271] make a special order to that effect, and not to leave the matter to implication. The defendants can, therefore, now raise the question of jurisdiction, and this brings us to consider whether the orator can at law avail itself of its defence to the defendant Willard’s suit. The primary ground and claim of the bill is, that the building committee had no authority to bind the town to pay $3,500 for building the town house alone, but only to pay that sum less what was reasonably necessary to be expended in furnishing it, and that the town has already paid to Willard all that the committee could bind it to pay him; and it repudiates the action of the committee as far as it was unauthorized, and seeks no benefit from the agreement of November 23, 1888, between the committee and the other defendants, relative to furnishing the house and indemnifying the committee, only in case its primary claim should not be sustained by the court. Touching this claim, it is clear that the actipn of the town at the meeting of November 19, 1888, limited to $3,500 the amount to be expended for both building the house and furnishing it. And the defendants so understood it, for they say as much in their said agreement. Willard so understood it, and yet he proceeded to contract with the committee to receive $3,500 for building the house alone, thus absorbing for one purpose all that was appropriated for both purposes. This the committee had no authority to do, as Willard well knew. He stands, therefore, in no better position in respect to the town than the committee had authority to put him, and that was, to have and receive from the town the sum of $3,500, less what was necessary for furnishing, and that was paid to him before he brought his suit, namely, $3,152.45, the cost of furnishing being $347.55, making in all the sum of $3,500, just what was appropriated for both purposes. Nor is Willard entitled to anything from the town for the two windows and cutting register for the furnace, not called for by the plans and specifications, but put in and done under the direc [272] tion of the committee, for he has already received from the town all that the committee could bind it to pay him. The-twenty-five dollar item for drawing plans, specifications, etc., was discharged by Willard, the master finds, when the building contract was executed, and in consideration of its execution on the part of the committee. lienee there was nothing due-from the town to Willard in respect of any of these matters when he brought his suit, to which the orator has a complete defence at law. This view of the case renders it unnecessaiy, as far as the town is concerned, to consider whether the agreement of November 23 would inure to the benefit of the town if necessary to protect its rights. If the town was liable to Willard to the amount of $3,500, then, in order to keep its outlay within the prescribed limit, it would need, if it could, to recover on that agreement the amount it expended in furnishing the house; but as it is not thus liable to Willard, it has no need of such a recovery, and if it should have it, it would inure only to Willard's benefit, as it could then pay him in full and still not be out of pocket beyond the amount appropriated. But the-orator stands in no such relation to Willard that it can recover on that contract for his benefit; and, indeed, Willard asks tor-no such recovery, and it does not appear that he claims that that contract can in any way be made to inure to his benefit. Hence no decree in favor of the orator for recovery on that contract could in any event be made against any of the defendants ; and as no positive relief can be granted to one defendant against another, except such as is incidental to the relief granted to the complainant, we need not inquire whether these defendants have any equities among themselves or not. Decree reversed, catise remanded, with directions to dismiss the bill, but without costs below to the defendants, for they are largely to blamefor this litigation. Barrett v. Sargeant, 18 Vt. 365.