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March, 1842.

Judd v.

Intyre.

he held the case under consideration for a time, but finally WASHINGTON, made the report now in the case and published it to the attorneys of the parties in Montpelier, the parties residing in Middlesex. McIntyre was informed by his lawyer of the substance of the report, but Judd not knowing that any had Blake & Mcbeen made but hearing a report that either none was made and the auditor had removed westward, or that it was against him, at the suggestion of a neighbor, called on McIntyre to effect a settlement. McIntyre had, or pretended to have, a claim against Judd for injury to colts in bad keeping and for some goods not included in the hearing before the auditor and delivered afterwards. They agreed each to pay his own costs and relinquish all claims, and Judd executed and delivered to McItyre a discharge of the suit and all the costs and damages therein. McIntyre did not inform Judd of the existence of the report and he was ignorant thereof at the time, and McIntyre was not asked whether any was made.

The court rendered judgment for the defendants and the plaintiff excepted to the judgment.

Heaton & Reed, for plaintiff.

The bill of exceptions shows that the defendant, McIntyre, with whom the settlement was made, knew, and Judd, the plaintiff, did not know, that the report of the auditor had been made, and was in the plaintiff's favor, and McIntyre by withholding this fact, obtained a discharge in full of the suit paying nothing.

This concealment and suppression was a fraud upon the plaintiff and makes the discharge void.

I. A false affirmation by McIntyre in reference to the existence of the report would have avoided the settlement. This is well settled. 1 Story's Comm. Eq. 201, 202. Pasley v. Freeman, 3 T. R. 51. Prentiss v. Russ, 4 Shep. R. 30. Cochran et al. v. Cummings, 4 Dall. R. 250. Richards et al. v. Hunt, 6 Vt. R. 253. Reynolds & Wires v. French et al., 8 Vt. R. 85. 1 D. Chipman, 49. Comyn on Contracts, 58.

II. This is a case where the silence of the party imports as much as a direct affirmation and is equivalent to it. There was a suppression of the truth. Judd had a right to suppose that if McIntyre knew that the auditor had made his

March,

1842.

WASHINGTON, report, he would inform him of the fact; and, in Judd's ignorance of it, there were no laches on his part, that will relieve McIntyre from the consequences of his actual and fraudulent surprise.

Judd v.

Blake & Mc-
Intyre.

This suppression of a material fact avoids the release. Hall v. Gray, 1 Stark. R. 434; (2 Eng. C. L. R. 459.) Milnes v. Duncan, 6 Barn. & Cress. 671; (13 Eng. C. L. R. 293.) Martin v. Morgan, 1 Brod. & Bing. 289; (5 Eng. C. L. R. 87.) Smith v. Richards, 13 Peters' R. 36. 1 Story's Comm. Eq. 201, 202. Comyn on Con. 58. Chitty on Con. 529. Etting v. Bank United States, 11 Wheat. R. 59; Cited, 1 Story's Comm. Eq. 222. Pidcock et al. v. Bishop, 3 Barn. & Cress. 605, (10 Eng. C. L. R. 197.)

O. H. Smith, for defendants.

1. It does not appear that McIntyre knew that the plaintiff was ignorant of the fact that a report had been made in his favor. But it does expressly appear no inquiry was made of McIntyre about the report.

2. It does not appear that the receipt given by Judd was without consideration, or that it was inadequate, nor that Judd has ever offered to give up the receipt given him, or in any way to vacate that part of the settlement.

To vacate the contract of settlement the plaintiff should have shown an intentional concealment by McIntyre of a material fact in relation to which Judd had not equal access to the means of information. 2 Kent's Com. 377-380.

The opinion of the court was delivered by

ROYCE, J.-The only question which the counsel have discussed in this case relates to the validity of the settlement, which took place between the plaintiff and the defendant, McIntyre, at the date of the plaintiffs receipt in full. I shall therefore only inquire whether that settlement ought legally to conclude the plaintiff.

That kind of fraud in dealing, by which one party to a contract is enabled to circumvent and cheat the other, usually consists in the assertion of falsehood, or the suppression of truth. But as McIntyre said nothing in the course of the settlement, respecting the auditor's decision, the case must turn upon the fact that he omitted to disclose his knowledge

March, 1842.

Judd

D.

Blake & Mc-
Intyre.

upon that subject. The moral law most certainly imposes WASHINGTON the obligation of a mutual and frank communication between parties when contracting with each other. By that code neither party is at liberty to withhold any material fact, of which he supposes the other to be ignorant. But the common law, as practically expounded and enforced, does not always enjoin so high a rule of moral duty, except in cases where some relation of special trust or confidence subsists between the parties. In this respect it not only falls below the perfect standard of Christianity, but sometimes fails to exemplify the utmost morality of the civil law. It generally supposes that each party will exert that attention to the matter and terms of the contract, and use that diligence in seeking information on the subject, which a natural regard to his own interest might be expected to induce. And by prohibiting whatever would ordinarily cause deception and injury under such circumstances, it professes, as Chancellor Kent remarks, to 'reconcile the claims of convenience with the duties of good faith.' I shall not undertake to review the numerous authorities which tend to illustrate these positions, but merely observe, with the same eminent jurist, in his note to 2 Kent's Com. 482, that upon the duty of mutual disclosure they appear to result in the following proposition; that the party in possession of the 'facts must be under some special obligation, by confidence 'reposed, or otherwise, to communicate them truly and fairly. Now there is no reason to suppose any such peculiar obligation between these litigant parties, nor did McIntyre avail himself of his information to draw the plaintiff into the settlement. It was sought and proposed by the plaintiff himself. And it seems that he withheld his own suspicions. as to the result of the audit, with a view, no doubt, to succeed the better in negotiating for a compromise. The settlement was probably the result of a studious silence on both sides in reference to the audit, each party intending to profit by his silence. And, although the plaintiff acted in ignorance of a fact which was doubtless of some importance, yet, as he took his own time for proposing the settlement, it was an ignorance which can hardly be excused; nor do we perceive that the defendant, McIntyre, without solicitation or inquiry, was legally bound to dispel it.

Judgment affirmed.

CALEDONIA COUNTY.

MARCH TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

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STEPHEN ROYCE,

JACOB COLLAMER,

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MILO L. BENNETT,

Assistant Justices.

TOWN OF KIRBY V. TOWN OF WATERFORD.

A new trial may be granted in a pauper case where the testimony is newly discovered and not cumulative, and will change the verdict, and the parties have not been negligent. Cumulative testimony is where the newly discovered testimony is to the same fact litigated at the former trial, but is not cumulative when it is to a different fact.

THIS action came into this court by an appeal taken by the town of Waterford from an order of removal of one Mary Olive Goodhue, made by two justices of the peace, removing said Mary O. Goodhue as a pauper from the town of Kirby to the town of Waterford. Plea, that the pauper was unduly removed, because the town of Waterford was not the place of the pauper's legal settlement, and issue to the jury.

It was admitted, on trial, that the pauper was the legitimate daughter of one Ephraim T. Goodhue, and that she took a derivative settlement from her father.

The appellees claimed that said E. T. Goodhue had his last legal settlement in Waterford, by virtue of the act passed November 6, 1801, entitled 'an act in addition to, and defin'ing what shall be deemed a legal settlement, and for the sup

Kirby

v.

Waterford.

'port of the poor,' &c., and that he had resided in Waterford CALEDONIA, March, one year, while said act was in force, without having been 1842. warned out of said town; and to support the issue on the part of the appellees, they gave in evidence that said E. T. Goodhue, on the 28th day of August, 1804, bought and had conveyed to him, by a well executed deed from one Samuel Goodhue, one hundred acres of land in said Waterford. Also that said E. T. Goodhue owned fifty acres of land in said Waterford, deeded to him by John Armington and Abel Willey, dated the 5th day of September, 1808, and that on the 1st day of October, 1810, he sold both pieces of said land to John and Elias Cheney; that while he owned said land he cleared about seventeen acres, and built a barn on the same, and raised several crops of grain on said land, and cut some hay on the same; that in the year 1808 said Goodhue's poll and three acres of land were set in the grand list of Waterford, and in the year 1809 his poll and five acres of land were set in the grand list of Waterford; and that a two year old colt was set in the said grand list to said Goodhue in the year 1814, and a horse was set in the said grand list to said Goodhue in the year 1815.

The appellees gave evidence tending to prove that said Goodhue, while he owned said land, resided in said town of Waterford one year; that while he was in Waterford he worked on said land at times, at other times he would go into other towns and do some work; that at other times he would go to Groton, N. H., and stay with his friends a short time, always returning to his land in Waterford until he sold it; that while he resided in Waterford he had no steady home, but went about, from house to house, among his neighbors, staying as long as they would keep him; that at other times he lived in an old shanty or hut, and that he never was in Waterford over ten months at one time; the other two months he was travelling about as aforesaid.

The appellees also introduced testimony tending to prove that said Goodhue, during the time aforesaid, had a chest, or trunk, that he kept at Waterford, in which he kept his notes and papers, and said trunk was at the dwelling house of one Stoddard, in Waterford, four or five years, and that he left his bed and bedding at the house of one Morgan, in Waterford, when he was at Groton, N. H. During all the afore

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