Reynolds v. Chynoweth

TAFT, J. By pleading to the new count the defendant waived his right to move to dismiss it upon the ground that it was for a new cause of action. Seymour v. Brainard, 66 Vt. 320. The court ruled it was competent to introduce any testimony pertinent to the issue joined. That this ruling was correct see Barney v. Bliss, 2 Aik. 60; Wheelock v. Wheelock, 5 Vt. 433 ; Allen v. Park hurst, 10 Vt. 557 ; Onion v. Fullerton, 17 Vt. 359; Briggs v. Mason, 31 Vt. 433; Carppenier v. Welch, 40 Vt. 251, A good consideration is alleged in the special count. The bare relation of landlord and tenant was a sufficient consideration for the promises laid. Powley v. Walker, 5 Term 373. The count has all the elements of a declaration in contract. An allegation of the consideration, the promises, a breach, and the resulting damages. The tenancy was of a letting upon shares and that the plaintiff can maintain assumpsit was decided in Lapoint v. Scott, 36 Vt. 309, which in its facts is analogous to the case at bar. The plaintiff’s husband was her agent in making the lease of the land and in the general management, control and oversight of it. All the matters to which he testified, under objection, had reference to the very matters within the scope [109] of his agency. No question is now made as to the testimony of the witness, Rowell. The foregoing holdings cover all the questions raised under the motions, to order a verdict, to set it aside, and in .arrest, and all made by the defendant’s brief. Judgment affirmed.