an objection made after the answer was given was too late, since the answer was responsive to the question, and hence it was not error to permit the question and answer to stand.

2. Where it does not appear from the record that a question to which an objection was interposed was answered, the ruling by the trial court allowing the question will not be reviewed on appeal.

3. The admission in evidence of the bills of watches, which gave the numbers on the watches, and were offered by a clerk who had charge of the store from which they were stolen be fore and at the time of the burglary, was proper, in connection with the clerk's testimony, on the question of the identification of the watches traced to defendant's possession shortly after the burglary.

4. Where bills containing the numbers of watches purchased were found by the court to have been lost, copies thereof, testified to by the purchaser, and used by the officer in identifying the property, were properly admitted in evidence in connection with the testimony of the purchaser.

5. Watches stolen from a store were always kept at night in a box under the counter. Defendant had been employed in the store, and had seen the watches put away on different occasions, and knew where they were kept. Shortly after the burglary he had some of the stolen property in his possession, and disposed of it at far less than its value. Held, that there was sufficient evidence to go to the jury, and hence there was no error in overruling defendant's motion for a verdict.

6. Where, in a prosecution for burglary, there was evidence of defendant's good character, an instruction that the unexplained possession of stolen property within a short time after the theft is evidence sufficient to convict a person of the crime by which it came into his possession, if it convinces you beyond a reasonable doubt that defendant is guilty, is erroneous, since it permitted a conviction on such evidence alone, without submitting the question of defendant's good character, which was an 'element to be considered in determining guilt.

7. An error of the trial court in giving an instruction which permitted the jury to find the guilt of defendant without considering evidence of his good character, which had been introduced, is not cured by subsequently giving a proper instruction on the same subject, which was not given to correct the former instruction, and was inconsistent therewith.

8. Where the evidence tended to show that some of the watches stolen and produced on the trial were found in the possession of a third person, who was not a witness, and there was no direct evidence as to how he came in possession of them, an instruction that, there being evidence that watches were stolen some of which were in the recent possession of defendant, there was evidence tending to connect him with the other watches stolen, is not error.

Exceptions from Bennington county court; Munson, Judge.

Morris Fitzgerald was convicted of burglary, and he brings exceptions. Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, START, THOMPSON, and WATSON, JJ.

Edward L. Bates, State's Atty. W. B. Sheldon, for respondent.

WATSON, J. The respondent was indicted and tried for burglarizing the store of Frank Huling, and for the larceny of 17 watches therein being, of the property of Huling. Huling was a witness in behalf of the state, and testified, in substance, that

some of these watches were old ones for which he had traded, and some of them were new ones purchased by him of Bogle Bros. of White River Junction, and that when he purchased them he received from Bogle Bros., bills with the numbers of the watches purchased thereon, which he afterwards compared with the numbers on the watches, and found to be correct; that after the burglary he copied the numbers of the watches from some of these bills, and gave a copy to the officer to aid him in looking after the stolen property and in identifying the same. The copied list was in court, and Huling was asked by the state whether the numbers upon that paper or list were the same that he found upon the bills which he had with the watches, to which he answered, "Yes, sir; all but one. There is one there that I am mistaken in." The respondent made no objection until aft er the answer was given, and the question and answer were allowed to stand subject to exception. The answer was responsive to the question, and the objection and the exception were too late, and are unavailing. State v. Ward, 61 Vt. 153, 17 Atl. 483. John Nash, the officer to whom the copied list was furnished by Huling, was improved by the state as a witness, and, after testifying to the description and numbers of the watches found by him, was asked how the description and the numbers he had given compared with the list furnished him by Huling before he recovered possession of the watches. To the ruling that this might be shown, respondent excepted. But it does not appear by the record that the question was answered, and therefore whether it was proper or otherwise is immaterial, as the respondent was not prejudiced thereby. Smith v. Insurance Co., 60 Vt. 682, 15 Atl. 353. M. C. Holt, an employé of Huling, who had charge of the store for a long time before and at the time it was burglarized, was a witness in behalf of the state, and produced a bill of two of the watches in question from Bogle Bros. to Huling. This bill contained the numbers of those two watches, and was properly admitted in evidence in connection with the testimony of the witness, upon the question of identification of the watches traced into the respondent's possession shortly after the burglary, as property stolen from Huling's store at that time. The bills of some of the other new watches were found by the court to be lost, and the copies thereof, testified to by Huling and used by the officer, were properly admitted as secondary evidence in connection with the testimony of the witness upon the same question. The evidence tended to show that these watches were kept in a show case in the store, and each night were taken therefrom, and put into a box under the counter to remain till morning as a hiding place, in case any one should break and enter the store in the nighttime with intent to steal, and that the respondent had been in the employ of Huling, slept over the store, and had seen the watches thus hid away on different occa

sions, by reason whereof he had knowledge of where they were on the night in question, and that shortly after the burglary he had in his possession some of the stolen property, and disposed of a part thereof at an unreasonably low price,-not more than half its market value. This evidence, with the evidence introduced, tending to establish the corpus delicti, made a case proper to be submitted for the jury, and in overruling the respondent's motion for a verdict there was no error. Wills, Circ. Ev. 162, 163.

In the fore part of the charge the court instructed the jury at different times, in substance, that the whole evidence which connected the respondent with the breaking and entering rested upon the fact of certain personal property that was alleged to have been in the store being found in his possession. Later in the charge the court said: "As I have before stated, the whole matter here stands upon the possession of this property. The unexplained possession of the stolen property within a short time after the theft is evidence sufficient to convict a person of the crime by which that property came into his possession, if it produces upon your mind such an effect as enables you to feel sure, beyond a reasonable doubt, that the respondent is guilty of the offense charged." To this the respondent excepted.

The evidence tended to show that shortly after the burglary the respondent openly, in the hotel at North Hoosick, N. Y., sold two of the nickel watches in question to the proprietor of the house, and that at the same time the respondent had and exhibited a gold watch of the same lot, and that he subsequently remained about there-just across the street from the hotel-openly for some time, and without apparently trying to hide himself; that he gave one of the watches to the witness Hathaway for carrying him-respondent-from Hoosick Junction to Eagle Bridge, and that at the same time the respondent exhibited two or three watches; that the watch given to the witness for that purpose was an old one of little value. So far as the evidence discloses, this transaction was open, with no apparent purpose of secreting or hiding anything. There was also evidence in the case, of more or less force, tending to show the respondent's previous good character. These were circumstances weighing in the respondent's favor. Mr. Bishop says: "The manner in which the defendant used the thing, as whether openly or not, is material to the effect of the possession." 2 Bish. Or. Proc. 746; Wafford v. State, 44 Tex. 439; Minor v. State, 56 Ga. 630. As to the force of good character, Mr. Wills says: "Good character has a very important bearing in rebutting the presumption of guilt consequent on possession, and in some cases may be sufficient to entirely overcome the presumption." Wills, Circ. Ev. 87.

It was the duty of the court to submit the case to the jury in a manner to require a consideration of not only the fact of the respondent's recent possession of a part of the stolen property, if that fact was established, but also a consideration of all the circumstances for and against him, and, on the whole, say whether they were satisfied of his guilt beyond a reasonable doubt. Mr. Bishop further says: "All the attending circumstances should be shown in connection with the fact of possession, and all should be taken into the account by the jury." 2 Bish. Cr. Proc. $ 745. Mr. Wills further says: "It is always a question for the jury, applying to the solution of the problem the common experiences and observations of life, whether they are satisfied, from all attending circumstances and other facts in evidence, that the possession was honest or felonious." Wills, Circ. Ev. 82. Under this instruction of the court, the jury were at liberty to consider and determine the question of guilt upon the recent unexplained possession of a part of the stolen property alone, and to convict the respondent if they were thereby satisfied of his guilt beyond a reasonable doubt. A conviction founded upon such a basis wholly deprived the respondent of the benefit of the attending circumstances in his favor, and also of the evidence of good character. This part of the charge was too narrow, and was error. Brooks v. Thatcher, 49 Vt. 492. Nor was this error rectified by giving the proper instruction upon the same subject in a later paragraph of the charge. The latter was not given to correct or supersede the former instruction, and was inconsistent therewith. The jury were left to adopt either, and it cannot be said that no harm resulted to the respondent therefrom.. Bovee v. Town of Danville, 53 Vt. 183.

The evidence tended to show that some of the watches produced on the trial were found in the hauds of one Delaney, in the state of New York, and that they were a part of the watches stolen at the time of the alleged burglary. Delaney was not produced as a witness, and there was no direct evidence as to how he came in possession of the watches, nor connecting the respondent therewith. Relative thereto the court charged the jury, in substance, that there being evidence tending to show a certain number of watches were taken on the same night, and that a portion of them were in the recent possession of the respondent, there was evidence tending to connect him with the other watches lost or taken at the same time. To this respondent excepted. We think those facts and circumstances had the evidentiary force given them by the court, and the charge in that regard was without error. Com. v. McGarty, 114 Mass. 299. Exceptions sustained, judgment reversed, verdict set aside, and cause remanded.

(72 Vt. 136)

WADE v. BUTTON et al. (Supreme Court of Vermont. Franklin. Feb. 24, 1900.)

TRUSTS-VALIDITY-DELIVERY OF MONEY.

Plaintiff's testate, after delivering money to defendants to be held to her use, executed and delivered to them a writing, which provided that, if she did not live to use up the fund, they should give it to certain persons named therein. Held, that the execution and delivery of the writing and the holding of the fund thereunder created a valid voluntary trust for the benefit of the person named, which could not be defeated by a will subsequently executed.

Exceptions from Franklin county court; Start, Judge.

Assumpsit by R. J. Wade, administrator with the will annexed, against E. A. Button and another. Judgment for plaintiff against defendant E. A. Button, who excepted. Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, THOMPSON, and WATSON, JJ.

W. D. Stewart, Hogan & Royce, and J. A. Flint, for plaintiff. Rustedt & Locklin and Wilson & Hall, for defendant Button.

THOMPSON, J. About July 27, 1893, the defendant E. A. Button and her husband, Alonzo Button, received from Lucinda H. Tarbell, plaintiff's testate, $300, and held the same to her use until the decease of Alonzo Button; and thereafter the defendant held the same for the use of said Lucinda, and subject to the writing hereinafter mentioned, until the death of said Lucinda, which occurred in January, 1898. Since her death $22.13 of interest has accrued on the $300. This action is brought to recover the $300 and accrued interest.

The money, when received

by the Buttons, was deposited in their name in the Richford Savings Bank, and has since remained there. After the delivery of the money to the Buttons, Lucinda H. Tarbell executed and delivered to defendant E. A. Button a writing as follows: "Emeroy A. Button, September 6th, 1893. If I do not live to use my money up that I have in the bank here in Richford, and Mrs. Toof is living, I want you to give her, Emma C. Toof, one hundred dollars, and I want you to give George N. Rounds one hundred dollars; also one hundred dollars to Lou Rounds Moses. [Signed] L. H. Tarbell." Prior to the execution of this writing, there was nothing to prevent said Lucinda from using or disposing of this fund as she saw fit to do. If the Buttons held it in trust for her, the trust was a simple or dry trust. Atkins v. Atkins, 70 Vt. 567, 41 Atl. 503. By the execution and delivery of this writing and the holding of the money thereunder, a valid voluntary trust was created for the benefit of the persons therein named, subject to be defeated only by said Lucinda's using up the fund during her life. This she did not do. Stone v. Hack

| ett, 12 Gray, 227; Davis v. Ney, 125 Mass. 590; Blanchard v. Sheldon, 43 Vt. 512; Williams v. Haskins' Estate, 66 Vt. 383, 29 Atl. 371; Sargent v. Baldwin, 60 Vt. 17, 13 Atl. 854; Bank v. Albee's Estate, 64 Vt. 571, 25 Atl. 487. It could not be defeated by the wili of said Lucinda, subsequently executed, and only taking effect at her decease. The benefi ciaries under the trust are entitled to the interest which has accrued since her death as well as to the $300. Judgment reversed and judgment for defendant E. A. Button to recover her costs.

(72 Vt. 148)

RIOUX v. RYEGATE BRICK CO.
(Supreme Court of Vermont. Caledonia.
March 3, 1900.)

CONTRACTS-IMPLIED AGREEMENT-BREACH. 1. Where plaintiff had plowed and picked the clay used in making brick under a contract re quiring the clay to be shaved, but the defendants had consented to the change, and the brick were of as good a quality as if made with shaved clay, such change did not constitute a breach of the contract, so as to release defendants from their obligation thereunder.

2. Where defendants knew at the time they contracted with plaintiff for the manufacture of brick that, because of plaintiff's financial condition, they would have to furnish him money and supplies to enable him to carry out the contract, which they furnished, an agreement to do so will be implied, and hence their failure to continue to furnish money and supplies constituted a breach of the contract which relieved plaintiff from carrying out its terms, and entitled him to recover for work done thereunder.

3. A brickmaking contract provided that all brick sold should be paid for the following month, and defendants knew that plaintiff had no means to carry on the manufacture except what he would receive for brick manufactured. Held, that the contract would be construed to mean that the brick must be sold and paid for within a reasonable time, so as to enable plaintiff to carry out the contract, and hence a failure to sell and pay for brick within such time was a breach of the contract which released plaintiff therefrom, and entitled him to recover for the breach.

4. That plaintiff did not comply with an implied provision in a brickmaking contract to buy all supplies of defendants is not a breach going to the essence of the contract, and hence will not defeat plaintiff's recovery for what he had done under the contract.

Exceptions from Caledonia county court; Watson, Judge.

Assumpsit by Alfred Rioux against Martin H. Gibson and John Gibson, partners under the firm name of the Ryegate Brick Company. Judgment for plaintiff, and defendants excepted. Affirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

E. W. Smith and Scott Sloane, for plaintiff. Dunnett & Slack, for defendants.

ROWELL, J. By the contract in question, made and executed the 2d of March, 1894, the plaintiff was to furnish help, horses, and everything else required to carry on the brick

business that the defendants were not to furnish, and make for the defendants in their brickyard, shaving the clay for that purpose, a million brick a year for five years, and as many more as the defendants wanted, at so much a thousand, packed on the cars. The defendants had "the privilege of furnishing" the plaintiff hay, provisions, and groceries, the price not to exceed what he would have to pay for the same grade of goods elsewhere; and all brick sold each month were to be paid for on the 15th of the following month. The referee finds that at the time the contract was made the plaintiff was a poor man, without the money, property, or credit necessary to employ and board the men and teams necessary to carry out the contract, and continued in the same financial condition up to the time this suit was commenced, which was known to the defendants when the contract was made and when they refused to furnish supplies as below stated. The finding that the defendants knew the plaintiff's financial condition at the time the contract was made is challenged as not supported by the evidence. But we think it a warrantable deduction from what the referee says he based it upon. The defendants saw the plaintiff in Gonic, N. H., where he lived, and there commenced negotiations with him; and the fact that as soon as he moved to Ryegate, which was the 3d of April, and before he could have done any work under the contract, the defendants, without, as far as appears, having learned anything new about him, and, as it were, as matter of course, began to furnish on credit all the provisions and supplies for his family, including his employés, and to pay his men, as the referee finds they did, affords of itself pretty good ground for saying that they knew from the first that they would have to do that in order to enable him to go on with the contract. And, besides, their concession on trial that he had no money or property to carry on the contract except what he was entitled to receive thereunder from them, being unlimited as to time, and coupled with the fact that they did not claim by their testimony that they supposed otherwise when the contract was made, is capable of being construed to mean, and probably does mean, that he had no other means at any time, neither when the contract was made nor afterwards; and, as the concession may properly be taken to have been based on knowledge, the referee might well have inferred that the knowledge and the concession were coextensive in point of time. The defendants continued to furnish supplies and to pay help to and including September 15th, and refused to do either thereafter. Up to this time the plaintiff had burned three kilns of brick, one in June and two in August, which produced, allowing the kilns to be alike, 1,162,500 brick, such as the contract called for; and on the 3d of September he had molded, dried, and hicked in the yard enough for another kiln, a part of which, at least, he packed in the kiln after September 15th, and the kiln was burn

ed the latter part of October. The plaintiff made 1,500,000 brick in all, such as the contract called for, which the defendants have sold and received pay for; but at the time suit was commenced-November 15, 1894-the defendants had sold less than half a million, leaving more than a million in the yard unsold; and those sold, with certain other items allowed the plaintiff, made his credit at that time, as the judgment was made up, $1,904.41, and the defendants had paid him $2,638.86, thus largely overpaying him on that basis; but the labor for making the brick left in the yard unsold came to $3,173.48 more, as allowed by the referee, and those brick were sold mostly in 1895 and 1896, and before the 15th of September of the latter year. Soon after the plaintiff commenced making brick, the defendants told him they could and would sell all he could make, and wanted him to make more than a million that season. Relying upon this, he employed more men and made more brick than he otherwise would, fully believing that the brick so made would be sold mostly that summer and fall, and the rest of them by the time brickmaking would commence in the spring. On September 15th, when the defendants refused to make further advances, there were about 750,000 brick in the yard that the plaintiff had made, and he then notified them that he had nothing to eat, no money to buy provisions, none to pay his help, and must work somewhere to get something to live on unless they would continue to furnish supplies to enable him to go on with the contract. The defendants refused to furnish him, and claimed as an excuse, as the referee says: (1) That they were not obliged to do so under the contract; (2) that he had broken the contract by not shaving the clay; (3) that they had already advanced more than was due him under the contract; and (4) that they had advanced to him more than all the brick then manufactured by him would come to at the prices named in the contract. The plaintiff plowed and picked most of the clay, instead of shaving it, as the contract required. But the referee finds that the brick were just as good with the clay plowed and picked as they would have been with it shaved, and that the defendants consented to its being plowed and picked. In November, shortly before suit was commenced, the plaintiff requested the defendants to furnish cars so that he could load brick and get some pay, or else to furnish supplies. In response to this they furnished one car only, which was loaded with 10,200 brick on November 12th, which were credited to him; but they made no other advances.

The plaintiff claims that the refusal of the defendants on September 15th to make further advances was a breach of the contract on their part, and that he was thereby both disabled and discharged from further performance on his part. That he was thereby disabled clearly appears, and the question is whether he was thereby discharged. The defendants say that they were not obliged by