Drown v. Oderkirk

Powers, J. The plaintiff seeks to recover pay for the care and support of the defendant’s minor daughter, Goldie. The defendant pleads the general issue, payment, and the Statute of Limitations. Judgment below was for the plaintiff on a verdict in her behalf. It appeared that on August 16, 1901, the plaintiff bought of the defendant a small place in Danville; and in support of his plea of payment, the defendant put in evidence a deed of this place, wherein appeared the following clause: ‘ ‘ Said Emmaretta Drown is to tenderly care for and bring up Goldie Pearl Oder-kirk, daughter of the grantor, Aurelius J. Oderkirk, as a further consideration for this deed.” Having given in evidence facts enough to show an acceptance of this deed by the plaintiff, the defendant asserted the claim that it constituted a complete bar to the action, and that parol evidence could not be received to vary or contradict the provision quoted, since one cannot, in an action at law, be heard to swear away his own deed. On the other hand, the claim of the plaintiff was that this provision was inserted in the deed without her knowledge or consent, and by fraudulent procurement of the defendant; and, subject to the defendant’s exception, she was allowed to give evidence tending to establish these facts. That a provision of this character, in a deed accepted by the grantee, is, the question of fraud aside, as binding upon the latter as though he had signed and sealed the instrument is admitted. Bishop v. Allen, 55 Vt. 423. It is not, however, his deed, and the provision is not his covenant, for the obvious reason that it does not bear his seal. So accordingly, it is held with us that an action for a breach of such a provision must be assumpsit and not covenant. Johnson v. Muzzy, 45 Vt. 419, 12 Am. Rep. 214. First Cong. Meeting House Society v. Rochester, 66 Vt. 501, 29 Atl. 810. So the fact that the provision is contained in a deed does not affect the question here presented, — and we do not [487] mean to imply that it would be affected by the fact that the provision was in an instrument sealed by the plaintiff. That there ivas evidence tending to show that the provision in question was fraudulently inserted by the defendant’s procurement cannot be denied. There was testimony to the effect that such an agreement was not discussed or entered into at that or any other time; that the defendant did, in fact, on that very day, agree to pay the plaintiff for the care and support of the child; that the plaintiff was very deaf; that all the time the deed was being prepared, she was walking the floor of the lawyer’s office with a sick and fretful baby; that the defendant stood “right over the shoulder” of the lawyer while he was drawing the deed; that the deed was not read over to her; that she knew nothing of this provision until she discovered it some years after; and that the defendant, when asked for money toward the support, never claimed the plaintiff was bound to take care of the child without pay, but continued to promise to pay for her keep, and did in fact make small payments from time to time. From this evidence, the jury might well draw the inference that the defendant fraudulently caused the provision to be inserted in the deed. The admissibility of this evidence, however, stands for consideration. It appears that the defendant, himself, opened this question, and that much of the evidence tending to impeach this provision of the deed was brought out by him. So far as this evidence is concerned, he cannot be heard to complain, of course. Clark v. Wild, 85 Vt. 212, 81 Atl. 536, Ann. Cas. 1914 C, 661; Thorworth v. Blanchard, 87 Vt. 38, 87 Atl. 52, and cases cited. But the plaintiff was allowed to go further, and give other evidence along this line, and she claims that this was proper in view of the defendant’s conduct in opening the door for the admission of this kind of testimony. The rule is well established that when one party introduces inadmissible testimony, the other party may introduce testimony of like character to meet it. Jenness v. Simpson, 84 Vt. 127, 78 Atl. 886. But the testimony here complained of went further; it did not meet that introduced by the defendant, but supplemented it; and it may be that the rule relied upon is not broad enough to cover such a case. We leave this question untouched, however, for we think the testimony was admissible without regard to the defendant’s conduct. That -the facts evidenced by the testimony referred to would make a good case for reformation in equity is apparent. Kilmer [488] v. Smith, (N. Y.) 33 Am. Rep. 613. But under the holdings of this Court, the plaintiff is not compelled to resort to equity. If the provision was fraudulently inserted in the deed by the defendant or his procurement, it never had legal existence. She accepted the instrument, supposing that it was nothing more than a deed of the place; it turned out to contain an engagement on her part fraudulently inserted by the defendant; to compel her to perform this engagement would be such an unjust imposition upon her that a court of law will protect her by allowing the facts to be shown. Thus, when a party accepts a writing, supposing it to be a mere receipt for transportation charges, but which turns out to contain in addition certain stipulations inconsistent with the contract of the parties, the facts may be shown by parol. King v. Woodbridge, 34 Vt. 565. When one accepts a ticket of admission to a fair, supposing it to be nothing more, which turns out to contain a provision binding him to membership in the corporation giving the exhibition, parol evidence is admissible. Tarbell & Whitham v. Gifford, 82 Vt. 222, 72 Atl. 921, 17 Ann. Cas. 1143. So, too, when an ignorant servant signed a writing supposing it to be a receipt for money paid, and nothing more, when in fact it contained a release of his cause of action -against the master for negligence, parol evidence is admissible to show these facts, and it makes no difference that the writing is under seal. Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 74 Atl. 99. The defendant contends that the contract, if any, was between the defendant, on the one part, and the plaintiff and her husband, on the other part; and that for this reason the husband should have been joined as plaintiff. It is true that the plaintiff, herself, made statements on the stand from which, standing alone, it might be inferred that the engagement was that of herself and husband; on the other hand, she made statements showing that the contract was her sole engagement. The most that can be claimed, therefore, is that it was a question for the jury. Both sides argued it as a jury question. And the defendant must have then understood that it was such, for the only exception taken by him was to the failure of the court to submit this question to the jury. It was, in the circumstances shown, the duty of the court so to submit it, as the non-joinder, if any, was available on the trial. Hilliker v. Loop, 5 Vt. 116, 26 Am. Dec. 286. [489] Turning to the charge, we find that this question was not, in terms, submitted; but the jury were instructed that their verdict should be for the plaintiff only in case they found that there was a contract between the plaintiff and the defendant. If the defendant regarded this as insufficient, he should have called specific attention to its defects. As against the exception taken, it was well enough. We cannot say that the allowance of the argument of counsel wherein reference was made to the pleas filed in the case was reversible error. It was wholly improper and should have been roundly rebuked by the court, as it could afford no aid to the jury in reaching a just verdict. But it was a matter for the trial court to handle, and in the circumstances shown, the exception thereto is not sustained. The defendant took twelve exceptions to the charge. The only one that .can fairly be said to be briefed is the one already disposed of. At the end of the brief, after reciting these twelve exceptions, it is said that “the defendant relies upon all these twelve exceptions in this Court.” This is all that is said about them. No error is pointed out; no attempt is made to assist the Court in finding error. Therefore it is enough for us to say that the exceptions are too inadequately briefed to require attention. Gordon v. Deavitt, 85 Vt. 338, 81 Atl. 1128; Hopkins v. Sargent’s Estate, 88 Vt. 217, 92 Atl. 14; Carleton v. Fairbanks & Co., 88 Vt. 537, 93 Atl. 462; Comstock v. Jahant Heating Co., (Ala. App.) 64 So. 178; Indianapolis v. Shoenig, (Ind.) 95 N. E. 324; Chicago, etc. R. Co. v. Barnes, (Ind.) 38 N. E. 428. Judgment against principal defendant affirmed. Judgment against trustees as per stipulation on file.