Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1881-03-25
WINDHAM COUNTY COURT.


Emery S. Wilder rs. Edgar ". BotSter.--This was
an action Of assumps to recover damages sustained
on account Of the breach Of certain contract for the
sale of real estate, mill property, ETC. Tho evidence
on the part Of the plaintiff tended to show that on the
9th day Of February, A. d. 1880, said plaintiff made
purchase of the defendant Of the "Fits Millr prop
ery, called in the town Of stratton consisting Of
sbout $50 acres OF land mostly covered with timber
trees, and on which situated a large dwelling
house, barn, saw-mil, single mill, playhouse, PLAN
ing and matching machine together with certain per-
sonal property belonging TO and used about said mill
for the agreed price Of $780, to be paid as follows =
$500 in saving lumber for the defendant before
Dec. 1, 1885, $500 in lumber cash before July
l, 1881; stOO ditto before July l. 1897 and $500
ditto on before July 1, 1888. That said contract
reduced to writing, in which II agreed that
the execution Of the notes, payable Aforesaid on
the part Of said plaintiff the 10th day Of February
$780, the defendant was to execute TO the plaintiff
bond for deed. That plaintiff 10 have posses
sion said 10th day Of February 1880 and that on
said 9th day Of February, the defendant delivered
over to him the personal property mentioned in the
written contract. Defendant went away with the UNI
dersanding that he to return the 10th, saying
that II he did not return at that time he should be
around within few days after, and that the plaintiff
could go into possession aud the mill just the
same as though he there, and that when he did
come they would execute and deliver the necessary
papers. lnhl plhlntlu bafBalneu one unQlNlueQ nhu
Of the property purchased by him to his fahern-
law, o. s. Howard Of Jamaica, who mill-wright,
carpenter and Joiner, for bonus Of 500, and they
went and took possession the 10TH agreed That
defendant did not attend that day, but did come
few days thereafter that plaintiff had continued in
possession, cleaning mp the premises, getting the
house in condition to move into and saving lumber
for defendant to apply the contract That defend
ant expressed himself satisfied with the manner in
which his lumber sawed, and agreed to get it
away as fast as plaintiff could II out. The plain
tiff on this occasion informed defendant that he had
his notes all ready for delivery to him. and requested
defendant to go with him that day to Mr.. sheldon the
town clerk and have his bond made and executed.
Defendant replied that he was In great hurry and
could not attend to it that day, but would return in
few days and have the whole matter fixed up, aud
the meantime to continue right along he then
doing Defendant left and did not return until March
4, when he notified the plaintiff that he should not
execute any bond for deed unless plaintiff would
give him bond to secure the payment Of the notes
This plaintiff refused to do but repeatedly informed
defendant that he ready to discharge and perform
his part Of the written contract The following day
he commenced saving at the mill as usual when Bow
ker out and asked to have him stop the mill and
do some little job upstairs. Plaintiff went up stairs
and while there defendant and his men started the
mill to running, and when plaiptif came down they
we're guarding the lever to the gate and refused to
surrender the possession to plaintiff aud thereafter
kept him out Of possession, and plaintiff was COM
PEELED to abandon the premises. That property
purchased by him was worth $25oO. The defendant,
when he purchased paid only $500, but subsequently
sold it to other parties for s26OO That defendant had
paid him nythng by way of damages in settle
ment, or for the work and labor performed By the
plaintiff while be in actual possession under the
contract.
The evidence on the part Of the defendant tended
to show that he was induced to enter into said contract
through the fraudulent representations Of the plain
tf to his ability to perform ii. That plaintiff rep
resented to him that he owned tract Of wild land
covered with timber, in Stratton that was accessible
to said MILL dwelling house in jamaica and quite an
amount of personal property in his own right; that
while he absent he learned that all such repre-
sensations untrue, and that in fact plaintiff
wholly Irresponsible and, learning that he refused
to complete the contract by giving him a bond for
deed and putting him in full possession unless plain
tiff would give him bond, with good signer, that
he would make the payments as they became DUE or
procure some good name upon the notes with him.
That plaintiff refused to do this, whereupon he re-
sumed possession OF the property and turned plain
tiff out. That he did sell the property in January,
1884, for $780, but that between the time of bargain
to the plaintiff and his hnal sale he had purchased
additional 100 of land and made additional re-
pairs to the mill property to the amount Of
The plaintiff in reply denied making any false rep
reservations, and gave evidence tending to show that
defendant well knew at the time that he was a poor
man, and that II he paid for the property It must be
through his labor.
Verdict for plaintiff, s7s.Ol damages.
Waterman and G. d. Eddy for plaintiff; Davenport
Eddy for defendant.
Ezra T. Haynes us. Philetus Hdynes.-This was an
action Of general assumpsit with a count for rent
Joined. The evidence Of the plaintiff tended to show
that prior to 1871 he the Of certain saw
mill in Wilmington, and also owned undivided half
Of the water privilege OF the Ray pond in said Will
mngton, C. N Davenport being the owner Of the 9TH
undivided half. That in 1871 he sold his mill in
Wilmington at auction, with right to the of his
undivided half OF the water Of the Ray pond until
such time 1t might be required for elsewhere.
That the property was bid of at 5000 by solomon
Gates, but Gates declining TO receive 1t, he subse-
quentiy sold the same to defendant for s6ss That
at the time Il decided, defendant required a clause
" " ~ 'ue 'ne sAiu "aAeI
right to the Ray pond until its use should be required
elsewhere in accordance with the terms in which II
was originally set up and bid OF at auction. This the
plaintiff declined to do, and informed defendant that
II he used the water Of the Ray pond he must pay
him rent therefor such as should be reasonable; and
that to this the defendant agreed. That defendant
did said water from year year under taid
ment, until April, 1871 when plaintiff filed his petit
ton in bankruptcy and was duly adjudged bankrul
received his discharge. That the use Of said water
while defendant was in possession Of it prior to his
bankruptcy was worth about $780, That after his bank
ruptcy the plaintiff purchased Of the assignee this
clam and other claims outstanding in his favor for
the sum OF SlD. Tnat uefenuhnt Also owed plain
tiff for freight paid for defendant plow, and also
freight on same from Brutteboro to Wilmington,
$780, which he also sought to recover for.
The defendant claimed, and his evidence tended TO
show, that he used said water from the Ray pond
under and by virtue Of lease Of one-half from Mr..
Davenport for which he paid him IS per year an the
other half by virtue OF express license from the
plaintiff at the time Of the auction sale and the sub
sequent conveyance of the mill property to him. That
although plaintiff refused to convey by deed giving
as reason that Mr. Davenport owned it in common
with him and therefore he could not convey IL by
deed yet he could have the Of the same, far
plaintiffs half-interest concerned, until 1t was
required elsewhere; and 1t was under this arrange
ment with plaintiff, and his hiring of Davenport that
he used the water That 10 the other two items Of
10 cents and 80 cents he paid the plaintiff therefor
years ago. Defendant also claimed that the statute
Of limitations had run upon the whole account, and
therefore no recovery could be had.
The jury unable to agree, and were discharged.
s. T. Davenport aud ]. L. Martin for plaintiff; o.
Z. Butterield and @. II. Eddy for defendant.
The court appointed as county road ommissioners,
under the law of 1880, o. z. Buterheld Of Whining
ton, VIM. W. Barney Of Guilford, and Leonard @.
Hubbard of Rockingham.
Divorces were granted in the following causes -
Mary A. Bailey from Fred W. Railey, for adultery
Lena E. MiIer from Samuel H. Mixer; jerome b.
Parmenter from Sarah Ann Parmenter; Joseph All
lert from Mary A. Albert; Maria S, Bems from Frank
W. Bemis for wilful desertion.
The court reached final adjournment on wednes-
day night