Nelson & Daniels v. Godfrey

Start, J. Tire plaintiffs and defendant entered into a written contract, whereby the plaintiffs undertook to erect in> a good, workmanlike manner a stone tablet, with the word “Mother” on the top thereof, at the grave of the defendant’s, mother, and a marker at the grave of a child. The defendant. 472 was permitted to show by parol evidence that at the time of making and signing the contract, it was agreed by the parties that some part of the inscription should be in raised rather than sunken letters. From this evidence, the referee finds that the word “Mother” was to have been in raised letters, and makes the question of recovery dependent upon the admissibility of this evidence, and upon the fact that certain abbreviations in lettering were made that is not now urged as an objection to a recovery. The referee has, in effect, found that the work was executecl in a good, workmanlike manner. This is all that was required of the plaintiffs by the terms of the written agreement, and their undertaking could not be varied or enlarged by an oral agreement made at the time of the execution of the written contract. Therefore, the oral evidence from which the referee found that the word “Mother” was to be cut in raised letters was inadmissible. Daggett v. Johnson, 49 Vt. 345; Pictorial League v. Nelson, 69 Vt. 162, 37 Atl. 247. The defendant insists that the action should have been special assumpsit, and that no recovery can be had under the general counts. This objection is not sustained. The cause having been referred, and it not appearing that this question was raised in the court below, nor that the report was objected to on this ground, it is considered that the defendant has waived this objection to the form of the declaration. In Lyndon Grmite Co. v. Parrar, 53 Vt. 585, under like conditions, it was so considered. Judgment affirmed.