the two amounts aggregating the face of ceptions from a separate judgment against the note. There was no express statement, him. Reversed, with costs. however, that payment was made on condi- Argued before WATSON, C. J., and tion that the amount remitted should be ac- HASELTON, POWERS, TAYLOR, and cepted in full for the note, and it was held MILES, JJ. there was no accord and satisfaction. Polin J. Ward Carver, of Barre, for plaintiff. v. Weisbrot, 52 Pa. Super. Ct. 312, was a dis- E. R. Davis, of Barre, for defendant. pute over the correct amount of plaintiff's bill, and the communication stated the accompanying check was sent in settlement of the account in accordance with the statement submitted, with the words at the bottom, "Please receipt and return." In the present

case the letter merely contained notice that the check was in payment of "the difference between" plaintiffs' account which was admitted and a demand arising by way of set

off or counterclaim. Under these circum

stances we must hold the notice to plaintiffs was insufficient to establish an acceptance of the check as a payment of the balance of

their claim.

The judgment is affirmed.

(91 Vt. 467)

CONTI v. JOHNSON et al. (Supreme Court of Vermont. Washington. May 10, 1917.)

1. FRAUDS, STATUTE OF 31 ANSWER FOR DEBT OF ANOTHER.

MILES, J. This case comes here from the Barre city court on exception by defendant Mann. The action is against him and Johnis the general issue, and the trial and facts son jointly in general assumpsit. The plea found were by the court, and judgment was rendered severally against each defendant, against Johnson for $155, and against Mann for $157. The specifications were in two items, one of which was for $155 for labor and material furnished to defendants jointly, and the other item was for $2 for labor

and material furnished Mann on his own individual account.

The findings briefly stated are that Johnson entered into a contract with Mann to build on his land four houses, and in the performance of that contract Johnson hired the plaintiff to do the plastering and furnish the material for the same, for which Johnson was to give the plaintiff $620 for the entire PROMISE TO Job, to be paid for as each house was comWhere liability of a contractor for construct-pleted. Upon the completion of the first ing a building on defendant's land, to plaintiff, house Mann paid Johnson $100, which was who was to do the plastering, continued the immediately passed by Johnson to the plainsame after defendant's promise to pay plain- tiff in the presence of Mann, and afterwards tiff, the promise was within the statute of Mann gave Johnson his check for $55, which frauds, being without consideration, and plaintiff not becoming liable to defendant or doing Johnson indorsed and passed over to the otherwise than he would have done if no prom- plaintiff in full payment for labor and mateise had been made. rial furnished for the first house. Afterwards and before the plaintiff commenced work on the second house, Mann met the plaintiff on the street and told him that he (Mann) "was in a hurry to get the second house finished, and he wished he would go down and do it at once, and he would see that it would be settled for"; that the plaintiff then understood that Mann was to pay him as soon as the second house was completed; 3. CONTRACTS 4-IMPLIED PROMISE-EVI- that after he had finished plastering the secWhere plaintiff performed work for a build-ond house, at different times, he requested ing contractor, who was bound by contract with defendant, that the building was constructed on defendant's land, does not raise an independent implied promise of defendant to pay plaintiff

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 47, 48.]

2. CONTRACTS 14-INTENT OF PARTIES.

Where the owner of a building did not promise to pay for the plastering done by plaintiff, employed by the contractor, that plaintiff understood that the owner was to pay him would not charge the owner.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 48.]

DENCE.

for his services.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 4-6.]

4. JUDGMENT 240 JOINT ACTIONS-SEPARATE JUDGMENTS.

Separate and independent judgments cannot be rendered in a joint action.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 423-425.]

payment, which was refused by Mann; that there was no evidence showing a rescission or repudiation of the contract between plaintiff and Johnson; that there was no other agree ment between plaintiff and Mann than what occurred on the street above stated, and that the charge against Mann is for one-fourth of what the plaintiff was to receive from Johnson for the four houses; that there was no evidence in the case that the plaintiff would not have done the work upon the second

house if he had not had the talk with Mann

Exceptions from City Court of Barre; H. upon the street, above stated; that the plainWilliam Scott, Judge.

tiff did the work upon the second house reAction by Antonio Conti against Harry F. lying upon the credit of Mann and his promJohnson and another. Judgment for plain- ise to see him paid for it; that the item of tiff, and the unnamed defendant brings ex-$2 was against Mann personally; that Mann

When

was upon the premises from time to time | really fulfilling an obligation of his own. during the work upon both houses, and knew carried further than this, the statute is really repealed." that the work was being done and material furnished by the plaintiff.

The court further along in the opinion

says:

"If the leading purpose and object be to guarantee, or become responsible for the payment of a third person's debt, then the promise is within the statute, although it may be founded upon a consideration directly between the parties."

At the close of all the evidence Mann moved for judgment on the ground that he could not be held on a verbal promise to pay the debt of another. The motion was overruled, and Mann was allowed an exception. He also excepted to the finding that he promised To show that the following cases are in to pay the $155 on the ground that there was no evidence supporting it, and because no harmony with the above rule, the court careseparate judgment could be rendered against fully analyzes French v. Thompson, 6 Vt. 54, joint defendants, and that no judgment could Lampson v. Hobart, 28 Vt. 697, Cross v. be rendered in such suit for the Independent Richardson, 30 Vt. 641, and Templeton v. debt of one of the defendants. The tran- Bascom, 33 Vt. 132; cases, sometimes referred script is made a part of the exceptions. No to as authority that where the promisor reexception was taken by Johnson to the judg-ceives a new and valuable consideration, the ment against him.

promise, though collateral, is not within the statute, and shows that they are cases when rightly considered, not in conflict with the rule laid down in Fullam v. Adams. In the same line with Fullam v. Adams, supra, are Cole v. Shurtleff, 41 Vt. 311, 98 Am. Dec. 587, People's Bank v. Adams, 43 Vt. 195, Durant v. Allen, 48 Vt. 58, Bailey v. Bailey, 56 Vt. 398, Garfield v. Insurance Co., 69 Vt. 549, 38 Atl. 235, Keyes v. Allen, 65 Vt. 667, 27 Atl. In Garfield v. Insur319, and 20 Cyc. 164.

Taking up the exceptions in the order in which the defendant treats them in his brief, we first consider his motion for a judgment. The motion is based upon the ground that the alleged promise is within the statute of frauds, and is without consideration. It is well settled in this state that a verbal promise to pay the debt of another, as a general rule, is collateral, if the debtor, after the promise is made, continues liable, and that such promise is within the statute of frauds.ance Co., supra, the scope of the holding in In Anderson v. Davis, 9 Vt. 136, 31 Am. Dec. Fullam v. Adams is thus explained: 612, Collamer, Judge, says:

"If the defendant became holden to the plaintiff for this claim against Lamb," the debtor "as collateral to Lamb, and the claim still remained against Lamb, it was within the statute. But if the defendant was to assume the debt, and he, alone, to be holden, and Lamb to be discharged, then the contract was not collateral, but independent, and not within the statute."

In Sinclair v. Richardson, 12 Vt. 33, Collamer, J., says:

"When an agreement is auxiliary to a subsist ing agreement, which remains in force for the party now claiming on the new contract, then the new contract is collateral to the other, and must be in writing. It is within the statute. But when the first contract is rescinded, superseded or abandoned, so as not to be in force in the plaintiff's favor, then the new contract is independent and is not within the statute."

In Newell v. Ingraham, 15 Vt. 422, Bennett, J., says:

"The rule is well settled that when the promise is ancillary to, and in aid of, the promise of another, it is within the statute of frauds. This will always be the case, where there is no new and independent consideration, and there exists another, and a previous liability."

In Fullam v. Adams, 37 Vt. 391, a leading case, very fully and carefully considered, the court affirms the doctrine laid down in the foregoing cases as a general rule, and states the exceptions to that rule, and sums up as follows:

"We know of no case in this state where the parol promise of one to pay the debt of another has been upheld upon any other consideration than the receipt of some fund or other security, cither from the debtor or creditor, charged with the payment of the debt, so that a trust or duty was created thereby to pay the debt, and so that in making the payment of the debt he was

"When the agreement is one which leaves the original obligation in force, it is to be regarded as collateral, unless the promisor receives something from the debtor to be applied upon the obligation, so that it becomes the duty of the promisor, as between him and the debtor, to make the payment."

[1, 2] No claim can be made in this case but that Johnson's liability continued the same after the alleged promise as before, because the plaintiff has taken a judgment against him in the same matter in which he seeks to hold Mann, and the case shows that the alleged promise was without consideration; that under his contract with Johnson the plaintiff was already bound to do what he did do, and nothing appears in the case that the plaintiff did otherwise than he would have done if no promise had been made by Mann; nor does the case show that the plaintiff in any way became liable to Mann on account of the alleged promise, and the plaintiff makes no claim that there was any consideration put into the possession of Mann with which to pay the plaintiff's demand against Johnson. The alleged promise, therefore, was collateral and within the statute; besides the evidence was not such as to support the finding that Mann promised to pay the plaintiff for the plastering of the second house, and Mann's motion for judgment in his favor should have been granted. That the plaintiff understood that Mann was to pay him and relied upon that understanding does not necessarily charge Mann. To have charged Mann because of the plaintiff's understanding, Mann must have said or done something to justify such (Pocket v. Almon

et ux., 90 Vt. 10, 96 Atl. 421); and the case [ set-off, claiming damages on his part exceeddoes not show this. ing $250. Under sections 1351 and 1390 of [3] Counsel for the plaintiff argue that be- the Public Statutes the county court has not cause the work of the plaintiff was done up-original jurisdiction over actions sounding in on the property of Mann and his property contract, wherein the debt or other matter in thereby increased in value, with full knowl-demand is less than $200, and original jurisedge of that fact, an independent implied diction over such matters is vested in a juspromise arose thereby to pay the plaintiff tice of the peace. the reasonable value of such service; but the work was not done for Mann, though done upon land owned by him, but was done for Johnson under a contract with him who was bound by contract with Mann to do it for him, and whatever benefit accrued from the labor of the plaintiff upon the second house inured to Johnson in part performance of his contract with Mann.

[4] Neither can the plaintiff recover in this suit against Mann for the $2 which the court found due the plaintiff from Mann, for separate and independent judgments cannot be rendered in a joint action. Machine Co. v. Morris et al., 39 Vt. 393; Green & Roberts v. Chapman et al., 27 Vt. 236. It is said in Bank v. Wood et al., 12 Vt. 252:

"Courts cannot take jurisdiction of distinct and separate claims against different persons, in the same suit. It would lead to great confu

sion in the rights of individuals, as well as in

the trial of causes, if such was the law."

To the same effect is 1 C. J. par. 223, p.

1072, and note 15.

Judgment of the city court against defendant Mann reversed, and judgment that he recover his costs.

(91 Vt. 369)

BARNARD v. LEONARD.

Argued before WATSON, C. J., and HAS-
ELTON, POWERS, and TAYLOR, JJ.
both of Rutland, for plaintiff.
Thomas W. Moloney and John S. Dorsey,
Phelps &
Pratt, of Fairhaven, for defendant.

WATSON, C. J. This is an action of general assumpsit, brought to the county court. The ad damnum in the writ was placed at $400. The plaintiff's specifications filed with the writ consisted of two items: (1) Logs skidded and piled under contract $300; (2) damages for breaking contract $100-total, $400. The defendant pleaded the general issue, and also filed a declaration in set-off, claiming damages in excess of $250. trial was by jury. At the beginning of the trial the court ruled that plaintiff could not recover on his declaration for damages

The

caused by breach of the contract; whereupon seek to recover under the quantum meruit plaintiff's counsel stated that plaintiff would count for labor and services performed. The contract was in writing.

The plaintiff's evidence tended to show that he piled and skidded in all 115,000 feet, and that $1.50 per 1,000 feet was a reasonable price for doing this work. His evidence also tended to show that he was paid by the de

(Supreme Court of Vermont. Addison. May 1, fendant after the first 50,000 feet had been

1917.)

1. COURTS 122-JURISDICTIONAL AMOUNTAD DAMNUM.

The ad damnum in the writ and the amount of plaintiff's specifications as filed, plaintiff having acted in good faith in bringing his suit, determine the jurisdiction of the county court. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 413, 427.]

2. TRIAL 281 - INSTRUCTIONS GENERAL EXCEPTION.

skidded and piled the sum of $50.

[1] At the close of the plaintiff's case the defendant moved that the action be dismissed for want of original jurisdiction in the county court, stating that in any event, according to the plaintiff's evidence, the sum or matter in demand did not exceed the sum of $109.28. The motion was overruled, and defendant excepted. As before seen, the ad damnum in the writ and the plaintiff's specifications as filed were large enough in amount to give the county court original jurisdiction. There is no finding that the plaintiff did not act in good faith in bringing his suit Exceptions from Addison County Court; as he did, and, on the contrary, the court beWillard W. Miles, Judge. low seems inferentially to have negatived Action by Arthur C. Barnard against Rich-bad faith by overruling the motion. This ard H. Leonard. There was judgment for exception is without force. Worcester v. plaintiff, and defendant excepts. Judgment Lampson, 55 Vt. 350; Drown v. Forrest, 63 affirmed.

A general exception to part of the charge to the jury stating no ground of objection is unavailing.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 694.]

Vt. 557, 22 Atl. 612, 14 L. R. A. SO; Bickford
v. Travelers' Ins. Co., 67 Vt. 418, 32 Atl. 230;
Mellen v. United States Health & Acc. Ins.
Co., 83 Vt. 242, 75 Atl. 273.

Action of contract. Plea, the general issue and declaration in set-off. Trial by jury. Verdict and judgment for the plaintiff. Exceptions by defendant. The judgment as [2] The bill of exceptions shows an excepfinally rendered for the plaintiff was $93. tion taken to what purports to have been The specifications as originally filed claimed a part of the charge to the jury. This ex$400. The defendant filed a declaration inception is general, and states no ground of

(Supreme Court of Vermont. Windham. May without a jury a defendant charged with being

The objection that the trial court had no power to try the case without a jury is based on such jurisdictional grounds that the question can be raised for the first time on exception [Ed. Note.-For other cases, see Jury, Cent. to the judgment. Dig. § 24.] [Ed. Note. For other cases, see Criminal 8. CONSPIRACY Law, Cent. Dig. § 2629.]

In view of Const. c. 1, art. 10, providing that in all prosecutions for criminal offenses a person hath a right to a speedy public trial by an impartial jury of the country, without the unanimous consent of which he cannot be found guilty, article 12, providing that when any issue in fact, proper for the cognizance of a jury, is joined in a court of law, the parties have a right to trial by jury, and chapter 2, § 31, LOR, JJ.

O. B. Hughes, State's Atty., of Brattleboro, for the State. W. B. C. Stickney, of Rutland, and George H. Thompson, of Bethel, for respondent.

TAYLOR, J. The respondent was prosecuted in the Brattleboro municipal court on a complaint charging him with being concerned in disposing of property by lottery in violation of P. S. 5936. On his plea of not guilty he was tried by the court and adjudged guilty. To this judgment and to certain rulings of the court during the trial the respondent seasonably excepted, and has brought the case here for review.

"No person shall be convicted of an offense unless by confession of his guilt in open court, him by his plea or demurrer, or by the verdict or by admitting the truth of the charge against of a jury accepted by the court and recorded."

It

This provision first appears in the revision of 1839 (R. S. c. 93, § 3), and has come down without change, except that in the earlier revisions it read "any offense" instead of "an offense." It has never before been squarely before the court for construction, and, so far as we are aware, has only once been referred to in a reported case. was cited in Bugbee v. Boyce, 68 Vt. 311, 35 Atl. 330, to the proposition that a conviction could be had only by an admission of guilt [1] Under the exception to the judgment or the verdict of a jury. That was an acthe respondent raises the question of the tion for false imprisonment. The plaintiff court's power to try the case without a jury. had been committed to jail on the warrant We find it advisable to consider that ques- of a justice of the peace, which was the imtion at the outset. The state contends that, prisonment sued for. The warrant on which since it does not appear that the exception the defendants relied for their justification to the judgment was based in the court be- recited that the plaintiff was brought before low on the objection now urged, the ques- the justice issuing the warrant charged with tion is not properly before this court. It having been found intoxicated, a finding by is said that by failing to object specially on the justice that she had been intoxicated, this ground in the trial court the objection his order that she make the disclosure then was waived. But the objection is based on required in case of a conviction for intoxijurisdictional grounds of such a character cation, and her refusal to comply. Plaintiff's that the question can be raised for the first claim was that the warrant was defective in time in this court on exception to the judg- | that it failed to show a legal conviction. It ment. Kelley v. Moretown, 71 Vt. 340, 45 was held by a majority of the court that the Atl. 224; Sanders v. Pierce, 68 Vt. 468, 35 recital of a finding by the justice that the Atl. 377; Lamson v. Worcester, 58 Vt. 381, plaintiff "had been intoxicated" fairly meant 4 Atl. 145; French v. Holt, 57 Vt. 187; that she "was adjudged guilty by the court Thayer v. Montgomery, 26 Vt. 491. upon proceedings previously had in due course." The question of waiver does not appear to have been brought to the court's attention, and there is nothing in the opinion to indicate that that point was considered.

The respondent did not expressly waive a trial by jury, and, so far as appears, did not object to the trial's proceeding without a jury. The state contends that he thereby waived his right to a jury trial, and cites in support of the proposition State v. Conlin, 27 Vt. 318, 323, where the court said that, if the Legislature sees fit to provide that minor offenses may be tried upon such a complaint as was there involved, or upon an oral ⚫ complaint made in court, or by a jury of six men, or no jury at all, it had no doubt of its right to do so. Commenting on this case in State v. Peterson, 41 Vt. 504, 524, the court observed that what was said about the right of trial by jury was obiter, and not supported by authority. But we are not now concerned with the power of the Legislature to provide by statute that one accused of a misdemeanor may waive the right We have no such statute to a jury trial. in this state, so the right depends upon the construction to be given to the constitutional guaranties and to P. S. 2216, which provides what is necessary to a conviction of one charged with an offense.

The respondent says that no question of constitutional right is involved, and rests his case solely on the statute. In view of his position we look to the Constitution only so far as its provisions aid us in construing the

If the effect of the statute is merely to create a personal privilege in favor of the accused, there would be much force in the claim that its benefits could be waived and that they were waived when the respondent took a trial by the court without objection. It is not to be supposed that the statute is merely declaratory of a right guaranteed by the Constitution if it is capable of a broader application, as in that event it would be wholly unnecessary. Thus it becomes necessary to examine the constitutional provisions for trial by jury.

The Bill of Rights provides:

*

"That in all prosecutions for criminal offenses, a person hath a right to lic trial by an impartial jury of the country: a speedy pubwithout the unanimous consent of which jury, he cannot be found guilty; by the laws of the land, or the judgment of his person be justly deprived of his liberty, except peers." Const. c. 1, art. 10.

It also provides:

*

nor can any

"That when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." Const. c. 1, art. 12.

The Constitution contains the further pro