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Nichols, 133 Pa. 438, 19 Atl. 422. The authorities are numerous that, when the deed is only the fulfillment in part of the article, the covenants are not merged in the deed, though it is executed, delivered, and accepted. Neither any rule of evidence nor the rule as to a merger of a preliminary contract in the deed of conveyance debars the plaintiff from alleging and procuring the true consideration for the sale, and that through mistake the consideration was incorrectly stated in the deed. Wilson v. Pearl, 12 Pa. Super. Ct. 66. It is admissible to prove the true contract, and that part of it was omitted from the writing by mistake. And this can be proved by the scrivener, and by the admissions and declarations of the vendee, deceased at the time of the trial. Schotte v. Meredith, 192 Pa. 159, 43 Atl. 952. In 19 Pepper & Lewis' Digest of Decisions, column 32,573, can be found many cases that are exceptions to the general rule that the execution and acceptance of a deed of convey. ance, is a consummation of all previous agreements between the parties, and the articles of agreement may be given in evidence to show that their conditions have not been complied with. In Byers v. Mullen, 9 Watts, 266, there was a deed and a receipt in full for the consideration money. The article of agreement showed that the vendee had agreed to pay off a certain judgment. It was offered in evidence, but rejected by the court be. cause merged in the deed. Held to be error, and that the vendee could show notwithstanding the deed that the vendor had not complied with the article of agreement. In Harbold v. Kuster, 44 Pa. 392, the article of agreement contained a reservation of the grain in the ground, but the deed subsequently given contained no mention of such reservation. It was held that there was no merger, and that the agreement could be enforced.
“Taking the facts of this case and apply. ing the law as we find it, we are convinced that the article and deed are not contradictory, and that both can stand, one the fulfillment of the other. It would have been better to have included all the covenants of the article in the deed, but by the mistake of the scrivener they were left out. This was unfortunate, but should be allowed to overthrow the true agreement between the parties."
Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.
Joseph A. Langfitt, W. A. McAdoo, and H. W. McIntosh, for appellant. M. F. Leason and C. E. Harrington, for appellee.
(81 Vt. 471) PLOOF V. PUTNAM. (Supreme Court of Vermont. Chittenden. Oct.
2, 1908.) 1. TORTs ($ 3*)-OBLIGATION VIOLATED.
While plaintiff and his wife and children were sailing, a violent tempest arose, whereby the boat and occupants were placed in great danger, and, to save them, plaintiff was compelled to moor the boat to defendant's dock. Defendant, by his servant, unmoored the boat, whereupon it was driven on shore by the tempest without plaintiff's fault, and destroyed, and plaintiff and his wife and children were cast into the water and upon the shore, and injured. Held, that plaintiff was entitled to recover.
(Ed. Note. For other cases, see Torts, Dec. Dig. $ 3.*] 2. ToRTs ($ 26*)-PLEADING-DESCRIPTION OF WRONG.
A complaint alleging these facts stated a good cause of action, though it did not negative the existence of natural objects to which plaintiff could have moored with equal safety; the details of the situation creating the necessity of mooring to the dock being matters of proof which it was unnecessary to allege.
[Ed. Note.-For other cases, see Torts, Cent. Dig. § 33; Dec. Dig. § 26.*) 3. MASTER AND SERVANT (8 329*)— MASTER'S
LIABILITY FOR INJURIES TO THIRD PERSONS -ACTS OF SERVANT--SCOPE OF EMPLOYMENT.
The declaration having alleged in one count that defendant, by his servant who was in charge of the dock, willfully and designedly un. moored the boat, and in the other that defendant by his servant negligently, carelessly, and wrongfully unmoored it, sufficiently showed that the servant was acting within the scope of bis employment.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 8 1269; Dec. Dig. § 329.* !
Exceptions from Chittenden County Court; Seneca Haselton, Judge.
Action by Sylvester A. Ploof against Henry W. Putnam. Heard on demurrer to declaration. Demurrer overruled, and declaration adjudged sufficient, and defendant excepted. Judgment affirmed, and cause remanded.
Martin s. 'Vilas and Cowles & Moulton, for plaintiff. Batchelder & Bates, for defendant.
MUNSON, J. It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did, moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon
PER CURIAM. The judgment is affirmed on the discussion and conclusion of law by the court below.
it was driven upon the shore by the tempest, Adams, 113 Mass. 376, 18 Am. Rep. 500, the without the plaintiff's fault; and that the defendant went upon the plaintiff's beach sloop and its contents were thereby destroy- for the purpose of saving and restoring to ed, and the plaintiff and his wife and chil. the lawful owner a boat which had been dren cast into the lake and upon the shore, driven ashore, and was in danger of being receiving injuries. This claim is set forth carried off by the sea; and it was held no in two counts—one in trespass, charging trespass. See, also, Dunwich v. Sterry, 1 B. that the defendant by his servant with force & Ad. 831. and arms willfully and designedly unmoored This doctrine of necessity applies with the sloop; the other in case, alleging that it special force to the preservation of human was the duty of the defendant by his serv- life. One assaulted and in peril of his life ant to permit the plaintiff to moor his sloop may run through the close of another to es. to the dock, and to permit it to remain so cape from his assailant. 37 Hen. VII, pl. moored during the continuance of the tem- 26. One may sacrifice the personal property pest, but that the defendant by his servant, of anotber to save his life or the lives of his in disregard of this duty, negligently, care fellows. In Mouse's Case, 12 Co. 63, the delessly, and wrongfully unmoored the sloop. fendant was sued for taking and carrying Both counts are demurred to i generally. away the plaintiff's casket and its contents.
There are many cases in the books which It appeared that the ferryman of Gravesend hold that necessity, and an inability to con- took 47 passengers into his barge to pass to trol movements inaugurated in the proper London, among whom were the plaintiff and exercise of a strict right, will justify entries defendant; and the barge being upon the upon land and interferences with personal water a great tempest happened, and a property that would otherwise have been strong wind, so that the barge and all the trespasses. A reference to a few of these passengers were in danger of being lost it will be sufficient to illustrate the doctrine. certain ponderous things were not cast out, In Miller V. Fandrye, Poph. 161, trespass and the defendant thereupon cast out the was brought for chasing sheep, and the de- plaintiff's casket. It was resolved that in fendant pleaded that the sheep were tres. case of necessity, to save the lives of the passing upon his land, and that he with a passengers, it was lawful for the defendant, little dog chased them out, and that, as soon being a passenger, to cast the plaintiff's casas the sheep were off his land, he called in ket out of the barge; that, if the ferryman the dog. It was argued that, although the surcharge the barge, the owner shall have defendant might lawfully drive the sheep his remedy upon the surcharge against the from his own ground with a dog, he had no ferryman, but that if there be no surcharge, right to pursue them into the next ground; and the danger accrue only by the act of but the court considered that the defendant God, as by tempest, without rault of the fermight drive the sheep from his land with a ryman, every one ought to bear his loss to dog, and that the nature of a dog is such safeguard the life of a man. that he cannot be withdrawn in an instant, It is clear that an entry upon the land of and that, as the defendant had done his best another may be justified by necessity, and that to recall the dog, trespass would not lie. In the declaration before us discloses a necestrespass of cattle taken in A., defendant sity for mooring the sloop. But the defendpleaded that he was seised of C. and found ant questions the sufficiency of the counts bethe cattle there damage feasant, and chased cause they do not negative the existence of them towards the pound, and they escaped natural objects to which the plaintiff could from him and went into A., and he presently have moored with equal safety. The allegaretook them; and this was held a good plea. tions are, in substance, that the stress of a 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, sudden and violent tempest compelled the pl. 19. If one have a way over the land of plaintiff to moor to defendant's dock to save another for his beasts to pass, and the his sloop and the people in it. The averment beasts, being properly driven, feed the grass of necessity is complete, for it covers not only by morsels in passing, or run out of the way the necessity of mooring, but the necessity and are promptly pursued and brought back, of mooring to the dock; and the details of trespass will not lie. See Vin. Ab. Trespass, the situation which created this necessity, K a, pl. 1. A traveler on a highway who whatever the legal requirements regarding finds it obstructed from a sudden and tem- them, are matters of proof, and need not be porary cause may pass upon the adjoining alleged. It is certain that the rule suggested land without becoming a trespasser because cannot be held applicable irrespective of cir. of the necessity. Henn's Case, W. Jones, cumstance, and the question must be left for 296; Campbell v. Race, 7 Cush. (Mass.) 408, adjudication upon proceedings had with ref. 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. erence to the evidence or the charge. 443 (459); Morey y. Fitzgerald, 56 Vt, 487, The defendant insis's that the counts are 48 Am. Rep. 811. An entry upon land to defective, in that they fail to show that the save goods which are in danger of being lost servant in casting off the rope was acting or destroyed by water or fire is not a tres- within the scope of his employment. It is pass. 21 Hen. VII, 27; Vin. Ab. Trespass, said that the allegation that the island and imply authority to do an unlawful act, and Mrs. Sarah J. Baker died in February, 1904, that the allegations as a whole fairly indi- leaving a will in which certain provisions cate that the servant unmoored the sloop were made for her husband Wm. A. Baker, for a wrongful purpose of his own, and not who survived her; that, when the will was by virtue of any general authority or spe- presented for probate, the husband, by his cial instruction received from the defendant. attorney, gave notice of his intention to waive But we think the counts are sufficient in the provisions of the will made in his behalf this respect. The allegation is that the de- and take his statutory rights in lieu thereof; fendant did this by his servant. The words that, the said Wm. A. being sick and unable "willfully, and designedly" in one count, and to attend court, his attorney, at his request, "negligently, carelessly, and wrongfully” in drew a formal waiver for him to sign; that the other, are not applied to the servant, but he duly executed it and sent it by mail to to the defendant acting through the servant. the attorney to be filed in the probate court; The necessary implication is that the serv- that the attorney received it, and took it to ant was acting within the scope of his em- the probate court at the time he filed an apployment. 13 Ency. P. & Pr. 922; Voegeli plication by the husband for the appointment v. Pickel Marble, etc., Co., 49 Mo. App. 613; of an administrator upon his wife's estate, Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 and supposed the waiver was filed with that N. E. 85. See, also, Palmer v. St. Albans, 60 paper until after the husband's death which Vt. 427, 13 Atl. 509, 6 Am. St. Rep. 125. occurred in April, 1904, when he learned that Judgment affirmed and cause remanded. it had never been filed. The probate court
found the fact that the waiver was never
filed in that court, and that it never came (81 Vt. 505)
to the knowledge of the court. It also found In re BAKER'S ESTATE.
that its loss had been duly proved, and held (Supreme Court of Vermont. Washington. that the husband intended to waive the will Nov. 17, 1908.)
and did waive it, and made a decree accordWILLS (8 788*)-ELECTION-SUFFICIENCY OF ingly. WAIVER BY SURVIVING HUSBAND—"As A
Section 2935, Pub. St., provides that a husWidow MAY WAIVE PROVISIONS OF WILL." Pub. St. § 2935, provides that a husband
band may waive the provisions of his wife's may waive the provisions of his wife's will will when she dies leaving no issue, "as a when she dies without issue “as a widow may widow may waive the provisions of her huswaive the provisions of her husband's will."
band's will." But section 2923 (3) Pub. St., Section 2325 (3) requires that the widow shall notify the court in writing of her election under
requires that the widow shall notify the court her husband's will within eight months after the in writing of her election to make such waiv. will is proved, or after letters of administra- er, and that the waiver shall be made within tion have been granted. Held, that a verbal eight months after the will is proved, or aftnotification of waiver made to the probate court by the attorney for the husband where the will
er letters of administration have been grantwas presented for probate was insufficient, where ed upon his estate, or in such other time as it was not followed by the filing of a written the court in its discretion allows. It was waiver within the time allowed by the statute.
held in Re Peck's Estate, 80 Vt. 469, 68 Atl. [Ed. Note.-For other cases, see Wills, Dec. Dig: $ 788.*]
433, that the words, "as a widow may waive
the provisions,” means "in the same manner.” Appeal from Probate Court, Washington That case is also decisive that notice of such County ; Alfred A. Hall, Judge.
election must be given to the probate court Petition by Sarah J. Baker's administrator within eight months unless the time is exto the probate court to determine the validity tended by the court. In the present case, as of the election of William A. Baker, surviving the waiver was not filed in said court nor husband of decedent, to waive the provisions brought to its knowledge, and no extension of decedent's will. From a judgment of the of time was granted or prayed for, the statcounty court affirming a judgment of the pro- ute was not complied with, and there was in bate court sustaining such waiver, Muncie law no waiver. An intent to waive the proGregg and another, heirs of decedent, appeal. vision of the will made known only by signing Reversed and rendered.
the paper was not sufficient. The acts of the R. W. Hurlburd, for appellants. Geo. W.
husband and his attorney did not constitute Wing, for appellee.
an election, as a matter in pais, to waive the
provisions of the will. In re Peck's Appeal, TYLER, J. The county court by agreement 80 Vt. 487, 68 Atl. 433. of parties, heard the case upon the facts The parol notice by the husband to the found by the probate court, and allirmed its probate court at the time he presented the decree. The probate court heard and decided will for probate of his intention to waive the the case upon the facts set forth in the peti- will can have no force; for, if for no other tion of the administrator of Wm. A. Baker's reason, the time when a waiver could be estate made to that court in November, 1905, made had not then arrived. and upon the evidence produced in its sup- Judgment reversed, and judgment that port. The petition alleges, in substance, that there was no waiver by William A. Baker in
his lifetime of the provision of the will of his wife, Sarah J. Baker, and that her estate be distributed according to the provision of the will.
county court, where there was judgment for claimant, and the administrator excepted. Reversed and remanded.
J. B. Donoway and J. E. Cushman, for plaintiff. Davis & Russell, for defendant.
(81 Vt. 498)
COWLES Y, COWLES' ADM'R. (Supreme Court of Vermont. Addison. Nov.
17, 1908.) 1. WITNESSES (8 181*)–COMPETENCY-TRANS
ACTIONS WITH DECEASED PERSON-WAIVER OF OBJECTION.
An administrator may waive the provisions of P. S. $ 1590, that, when an administrator is a party, the other party shall not testify in his own favor except in certain cases, and permit the adverse party to testify.
[Ed. Note.-For other cases, see Witnesses, Ceat. Dig. 88 727, 728; Dec. Dig. § 181.*] 2. WITNESSES ($ 181*)-COMPETENCY-TRANS
ACTIONS WITH DECEASED PERSONS-WAIVER OF OBJECTION.
Evidence held to support a finding that an administrator waived the incompetency of plaintiff to testify in his own behalf respecting his claim against the estate before the commissioners thereon.
[Ed. Note. For other cases, see Witnesses, Cent. Dig. $$ 727, 728; Dec. Dig. $ 181.*] 3. WITNESSES (8 181*)–COMPETENCY_TRANS
ACTIONS WITH DECEASED PERSONS-WAIVER OF OBJECTION.
The waiver of plaintiff's incompetency as a witness before the commissioners bound the administrator on appeal to the county court.
(Ed. Note.-For other cases, see Witnesses, Cent. Dig. $$ 727, 728; Dec. Dig. § 181.*] 4. EXECUTORS AND ADMINISTRATORS (8 451*)ACTIONS-DIRECTION OF VERDICT.
In an action by decedent's son against the administrator to recover for services rendered decedent, where there was evidence that the son returned to the home farm to carry it on, and care for his father, upon a mutual understanding between them that the son was to be paid for his services, a directed verdict for the administrator was properly refused.
[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. & 1879; Dec. Dig. $ 451.*) 5. WITNESSES ($ 268*)-CROSS-EXAMINATION.
In an action against an administrator by decedent's son for board and services rendered decedent, where plaintiff claimed that there were mutual transactions between himself and decedent, and had stated an annual account, crediting decedent each year with supplies furnished which were deducted from plaintiff's annual charge for decedent's board, and plaintiff's wife testified that decedent had furnished certain things towards his board, it was error to refuse to allow her to be asked on cross-examination whether she had ever seen any book upon which those things were charged or credited to ascertain the source and extent of her knowledge of the matter about which she had testified.
[Ed. Note.- For other cases, see Witnesses, Cent. Dig. $ 932; Dec. Dig. 8 268.*]
Exceptions from Addison County Court; Willard W. Miles, Judge.
Proceedings for settlement of the estate of Josiah Cowles. From the allowance by the commissioners thereon of a claim of J. E. Cowles, the administrator appealed to the
TYLER, J. This is an appeal by the administrator of Josiah Cowles' estate from the allowance by the commissioners thereon of a claim in favor of the plaintiff. Assumpsit in the common counts. Pleas, the general issue and statute of limitations.
1. At the trial in the county court the plaintiff offered himself as a witness to prove the items in his specification. He did not claim that he was a competent witness under any exception to P. S. 1590, but he did claim that the defendant had waived the provisions of the statute by calling him as a witness at the hearing before the com. missioners. The defendant objected to his testifying upon the ground that he was barred by the statute, and he testified under the defendant's exception. It was competent for the administrator to waive the stat. ute, and permit the plaintiff to testify. Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805. In Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042, the oratrix called the defendant as a witness, and proved by him the making of the contract, in controversy with a party who had deceased. Held that she thereby waived her right to object to him for incompetency when he was subsequently called by the other side. See Linsley v. Lovely, 26 Vt. 123. If there was a waiver and the plaintiff became a competent witness, it was by reason of the following facts that the evidence tended to show: The firm of Davis & Russell, attorneys, had been employed by two of the four heirs to the estate to appear at the hearing before the cominissioners. Russell appeared in that capacity, but was not employed by the administrator. The plaintiff having stated his claim and the arrangement and understanding that existed between him and the intestate, Russell requested that he be sworn, which was done, when Russell examined him generally as to the nature and extent of his claim and as to the understanding and arrangement claimed by him to have existed. It appeared that the administrator was present when the plaintiff was sworn and heard him testify; that he made no objection; that the plain. tiff's testimony was generally about his ac count; that the administrator made no inquiries and directed none to be made of the plaintiff with reference to his claim; that he did not employ Russell until after the hearing and then about taking an appeal; that the appeal was taken at the instance of the two heirs whom Russell represented. The court found that the plaintiff was used as a witness before the commissioners at the
request of the defendant, and held that the the privilege was created was gone by the statutory bar to his testifying was waived, appellant's own consent. and that he was therefore competent to tes- 3. There was evidence tending to show tify as a witness in his own favor. Mr. that the plaintiff returned to the home farm Russell represented the interests of two of to carry it on and take care of his father, the four heirs. The administrator represent- the intestate, upon a mutual understandipg ed the interest of all the heirs therefore to between them that the plaintiff was to be an extent the attorney and the administra- | paid for his services. Therefore the defendtor represented the same interests. They ant's motion for a verdict was properly overwere alike interested to resist the plaintiff's ruled. Robinson v. Larabee, 58 Vt. 652, 5 claim; for, if it were allowed, the distribu- Atl. 512. tive shares of the heirs would be diminish- 4. The plaintiff introduced his wife as a ed. The apparent purpose of Russell's ex- witness, and she testified that certain things amination of the plaintiff was to gain in- were furnished by the intestate towards his formation concerning his claim, so that the board, which the plaintiff claimed were inestate might be prepared to defend against cluded in the transactions between himself it.
In this the administrator and Russell and the intestate, and which he claimed had a common interest. By the common-law should go into the adjustment of the acrule a married woman was incompetent to counts between them. The witness testified testify for or against her husband in a civil that in the six years prior to the death of action, but it is laid down in Wig. on Ev. the intestate he turned in one pig, half a § 2242 (3), that a failure to object upon the beef, and tea and coffee towards his support. calling of the wife to the stand is equivalent She was not inquired of in her direct exam. to consent. In Benson v. Morgan, 50 Mich. ination whether tbese items were inade the 77, 14 N. W. 705, a married woman bad sued subject of a book account, nor whether any a firm in which her husband was concerned account or memoranda of the several items and called him as a witness in her favor. and transactions were kept by the parties. Held that consent was implied from the de On cross-examination the defendant inquired fendant's presence in court and failure to of her whether she had ever seen any book object. As was said by the court in Ains- upon which these items were charged or worth v. Stone, supra: "The statute is for credited. The question was objected to by the benefit of the representatives of the de- the plaintiff, and excluded by the court upon ceased party, and only prohibits a party the defendant's refusal to inform the court from being a witness in his own behalf when of the purpose of the inquiry. The plaintiff the other party to the contract or cause of claimed that there were mutual transactions action in issue and on trial is dead. It does between himself and the intestate. In his not prohibit the representative of the deceas- specification, which is referred to in the exed party from waiving the statute, and call- ceptions, he states an annual account and ing the other party to the contract to testi- credits the intestate each year with potatoes, fy in his favor.” There was no error in be pork, beef, tea, and coffee to the amount of finding that the administrator consented to $24.50, aggregating in the six years--1901 the plaintiff's testifying before the commis- to 1906, inclusive $195.56, which he deducts sioners; for there was evidence tending to from the amount of his annual charges for support it.
the same time for boarding the intestate, 2. The waiver of the incompetency of the keeping and use of his horse, and work perplaintiff as a witness in proceedings before formed, $1,512.49. The answer given by the the commissioners bound the defendant in plaintiff's wife in her direct examination the hearing on appeal. Green v. Crapo, 181 related to the items claimed by the plaintiff Mass. 55, 62 N. E. 956, is authority on this to have been furnished by the intestate and point. There the plaintiff testified without tended to establish the plaintiff's claim of objection in the probate court to a privileg- mutual transactions. The question asked ed communication between himself and the her by the defendant's counsel and excluded defendant. In the trial in the superior court was in the line of proper cross-examination objection was raised to the plaintiff's testify- for the purpose of ascertaining the source ing in his own behalf, but the court ruled and extent of her knowledge of the matter that the objection had been waived, and the about which she had before testified. testimony was admitted. The Supreme For the error in denying the right to Court sustained the ruling, saying in the cross-examine, the judgment must be reversopinion: "The privacy for the sake of which ed and cause remanded.