cause.

circumstances all this court can do is to as- sought, introduces a new cause of action, which sume that the finding was upon competent is not permissible. and sufficient evidence. Martin v. Wells, 43

[Ed. Note.-For other cases, see Pleading, Vt. 428; Sargent v. Burton, 74 Vt. 24, 52 Cent. Dig. 88 686-709; Dec. Dig. $ 248.*) Atl. 72. It must stand, therefore, unless it Exceptions from Franklin County Court; appears on its face to be erroneous. The Zed S. Stanton, Judge. orator says that a patent cannot be owned

Action by Albert Sowles against the Hart. by a partnership. But this cannot be so, for ford Life Insurance Company. A motion a patent right and the privileges thereby of defendant was overruled, and it brings exgranted are incorporeal personal property ceptions. Judgment reversed, amended dec(De La Vergne Refrigerating Mach, Co. v. laration dismissed, and cause remanded. Featherstone, 147 U. S. 209, 13 Sup. Ct. 283, Argued before ROWELL, C. J., and JUN37 L. Ed. 138), and are entitled to the same SON, WATSON, HASELTON, and POWrights and sanctions which attend other prop- ERS, JJ. erty (Cammeyer v. Newton, 94 U. S. 225, 24 L. Ed. 72; Densmore v. Scofield, 102 U. S.

Hiram P. Dee and M. H. Alexander, for 375, 26 L. Ed. 214). They may be transfer- plaintiff. C. G. Austin & Sons, for defend

ant. red by oral agreement, as was here done, and such agreement is not within the stat. ute of frauds, nor within U. S. R. S. § 4898

HASELTON, J. This is an action of as(U. S. Comp. St. 1901, p. 3387), requiring as

sumpsit. The original declaration was in signments to be in writing, and will be speed, the plaintiff filed an amended declaration,

four counts. After the defendant had pleadcifically enforced in equity when properly proved. Dalzell v. Dueber Watch Case Mfg. which also was in four counts. The defendCo., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. ant filed a motion to dismiss the amended 749; Harrigan v. Smith, 57 N. J. Eq. 635, 42 declaration on the ground that it introduced Atl. 579; Searle v. Hill, 73 Iowa, 367, 35 n. a new cause of action, and on other grounds. W. 490, 5 Am. St. Rep. 688; Hammond v. This motion was overruled. The defendant M. & H. Organ Co., 92 U. S. 724, 23 L: Ed. excepted, and the case was passed to this 767.

court without further proceedings in the [7, 8] And while it is true that the partnership did not acquire title to the patent

In the original declaration the first count simply by reason of the fact that partner- says that by virtue of a life insurance policy, ship funds were used in obtaining it (Burr numbered 103306, issued by the defendant v. De La Vergne, 102 N. Y. 415, 7 N. E. 366; company in 1888, upon the life of the plainBelcher v. Wittemore, 134 Mass. 330), it did tiff, he was to pay to the company, in orbecome, as it lawfully might (Fresno Home der to keep the policy in force, quarterly Packing Co. v. Fruit Cleaning Co., 101 Fed. assessments and expense dues, not to exceed 826, 42 C. C. A. 43; Button Holeing Co. v. certain sums named, after he obtained the Somerville, L. T. [N. S.) xxxviii, 878), the age of 65 years; that he reached that equitable assignee thereof by force of the age in 1898; and that thereafter, in disreagreement.

gard of the provision of the contract of in[9] A compulsory assignment is within the surance just set out, the defendant had dejurisdiction of the court of chancery, and manded and received of the plaintiff quarthe decree below ordering such an assign- terly assessments, in excess of the maximum ment by the orator and appointing a trustee sums required by the contract, aggregating to act in case of his refusal was correct. $300; and that the defendant was indebted Ager v. Murray, 105 U. S. 126, 26 L, Ed. 942. to the plaintiff in that sum as for so much

Decree affirmed and cause remanded. Let money had and received. The second count a new time be fixed by the court of chan in the original declaration is like the first cery within which the orator shall assign to except that it declares as for money bad and the receiver the patent in question.

received for like overpayments to the amount of $300 exacted and received of the plaintiff after he became 65 years of age, under

another policy, namely, policy numbered SOWLES V. HARTFORD LIFE INS. CO. 103665. The third count in the original (Supreme Court of Vermont. Franklin. Sept. declaration is like the first, except that it 23, 1911.)

declares as for money bad and received for PLEADING ($ 248*)-AMENDMENT-New Cause the sum of $900 exacted and received by OF ACTION.

the defendant from the plaintiff after he beAmendment of a declaration seeking to recover the excess of assessments which defendant came 65 years of age, under still another had demanded and received of plaintiff in vio- policy, namely, policy numbered 108816. The lation of a provision of a policy on his life is fourth count in the original declaration is sued by it that, after he reached a certain age, simply the common count for money had his assessments should not exceed a certain amount, by averment of breaches of other provi- and received, and declares for the sum of sions of the policy, for which recovery is also / $1,500, which is the aggregate of the sums declared for in the three preceding counts. | right collected of the plaintiff a large sum of It is obvious that this count was joined with money, to wit, $100 for sending out notices the others merely as a matter of customary of mortuary assessments, and has also withprecaution, and that it was not intended by out right collected a further sum of money, the pleader to state a further cause of ac- to wit, $500, by way of expense dues in extion.

cess of the amount of such dues permitted The first count of the amended declaration under the contract, and has in violation of alleges the contract of insurance, policy the contract collected of the plaintif the sum numbered 103306, between the plaintiff and of, to wit, $100 for the safety fund, and, to the defendant, entered into in 1888, and wit, the sum of $2,000 as mortuary assesssets out that the contract provided for as- ments in excess of the assessments warranted sessments for the purpose of forming a by the contract, and has, without right, colmortuary fund and for the creation of a lected of the plaintiff the sum of, to wit, safety fund, which assessments were to be $100 assessed upon the quarterly calls of levied upon the plaintiff and upon all other the defendant. At this point the count inmembers of the company holding policies corporates the cause of action set forth in similar to that held by the plaintiff; that the first count of the original declaration, the assessments were to be made according to and alleges, in accordance therewith, that a table of graduated ratios; that the plain- | the defendant has collected and received of tiff at the time of the contract was 54 years the plaintiff the sum of, to wit, $300 in vio. old; that the money paid to the defendant lation of the stipulation in the contract as for a safety fund was to be deposited with to the sums collectible of him after he ata certain security company as trustee to tained the age of 65 years. The declarabe invested by the security company in gov- tion adds an averment that the defendant ernment bonds, and that the security com- has from the day and date of the contract pany was, on conditions the fulfillment of disregarded the stipulation therein as to the which is alleged, to pay over to the defend- mortality ratio, and that in consequence ant company, at intervals, the income on thereof has demanded and received of the such bonds, which income the defendant plaintiff the sum of, to wit, $1,000. The secwas to divide among policy holders of the ond count of the amended declaration reclass to which the plaintiff belonged; and lates to the policy of insurance issued by the that it was agreed that, whenever the safety defendant to the plaintiff in 1888, and numfund sbould amount to $1,000,000 all subse- bered 103065. Its allegations are similar to quent receipts therefor should be divided those in the first count of the amended decamong policy holders of the class to which laration, though there are some changes and the plaintiff belonged for the payment of additions. The third count in the amended future dues and assessments. The count fur- declaration relates to policy numbered 108ther alleges that the defendant did not at 816, issued by the defendant to the plainany time after the date of the policy make tiff in 1888. This count is in general like the any division among the policy holders en first count of the new declaration. The titled thereto of the income from the safety fourth count in the amended declaration refund, notwithstanding the existence of the lates to all three of the policies already conditions making such division obligatory, mentioned, and, in effect, brings together the and that on March 1, 1899, the safety fund allegations of the three preceding counts. was far in excess of $1,000,000, but that, not- The four counts of the amended declarawithstanding that fact, the defendant did tion cover 31 typewritten pages, and we have got, and has not since, made any division of not undertaken to go much into the details safety fund receipts, in accordance with the of the things alleged. They all allege misagreement already referred to, but that, in conduct on the part of the defendant from disregard of its undertakings, it has from about 1888 when the policies were issued time to time without the knowledge and and the plaintiff was 54 years old down to against the will of the plaintiff, and the oth the present time. They allege that this er policy holders, diverted the safety fund misconduct, consisting in part of a misapfrom United States bonds to securities of propriation of funds, was a violation of the doubtful character, and has thereby caused defendant's contracts with the plaintiff and a large loss to the fund and to the policy of its contracts with other policy holders of bolders. The count further alleges that by the same class, and they seek, to recover reason of its disregard of its undertakings money paid in consequence of the wrongful referred to and its misappropriation of the doings and exactions of the defendant made safety fund the defendant ceased to do busi- in a variety of ways during the entire life ness under the safety fund plan, and there of the policies. The ad damnum is set at by caused the cost of maintaining in force $10,000. Nothing can be plainer than that the policy of insurance to far exceed the this amended declaration introduces a cause amount agreed upon in the policy. The count of action not contemplated when the origfurther alleges that in violation of the con- inal declaration was drawn. Derosia v. Fer

TIES.

A. (N. S.) 577, 138 Am. St. Rep. 1092; Esta- , sented by the evidence, and the nonsuit was brooks v. Insurance Co., 74 Vt. 203, 52 Atl. properly granted. 420. The plaintiff cites Haskins V. Ferris, There is no error. In this opinion the other 23 Vt. 673, Trescott v. Baker, 29 Vt. 459, and Judges concurred, except WHEELER, J., Boyd v. Bartlett, 36 Vt. 9. But these cases who dissented. are all against his contention that the amended declaration introduces no new cause of action. So the amended declaration should

WITHAM V. WING et al. have been dismissed on the ground already

Oct. 5, considered, for, as was tersely said by Judge (Supreme Judicial Court of Maine.

1911.) Steele, the statute does not authorize "a new suit under the guise of an amendment.” 1. MECHANICS' LIENS ($ 277*)—PROCEEDINGS

-STATEMENT OF LIEN-VARIANCE BETWEEN Dana v. McClure, 39 Vt. 197; Estabrooks v.

STATEMENT AND BILL-CONTEACTING PARFidelity, etc., Co., 74 Vt. 202, 52 Atl. 420; Brodek v. Hirschfield, 57 Vt. 12; McDermid

In a suit to enforce a lien for labor and v. Tinkham, 53 Vt. 615 ; Carpenter v. Gookin, of the record of the lien statement, filed in

materials, plaintiff offered in evidence a copy 2 Vt. 495, 21 Am. Dec. 566.

the town clerk's office pursuant to Rev. St. Judgment reversed. Judgment that the c. 93, § 31, within 60 days after cessation of amended declaration is dismissed and cause

labor, in order to preserve his lien, stating the

name of the owner, the amounts due, descripremanded.

tion of the property, etc., as required by the statute, and in addition stating the name of the person with whom the contract was made, which the statute does not require. Held that,

as the statement was received in evidence, and RHONE 7. SPERRY & BARNES CO.

was admissible, only to show that plaintiff had taken the necessary steps to preserve his lien,

and not to prove the contract, any variance in (Supreme Court of Errors of Connecticut. the name of the persons contracted with, as Oct. 6, 1911.)

alleged in the bill and shown in the statement,

would not defeat the lien, only being available TRIAL ($ 139*)—QUESTION OF FACT OR LAW-to impeach plaintiff's testimony that the conDIRECTION OF NONSUIT.

tract was made with the person alleged in the Where there was no evidence from which

bill. the jury could reasonably have found that the [Ed. Note.-For other cases, see Mechanics' defendant was negligent as alleged in the com- Liens, Cent. Dig. $8 546-554; Dec. Dig. 8 plaint, and that plaintiff's own negligence did 277.*) not essentially contribute to his injury, a non- 2. EQUITY (8 330*) — WAIVER — FAILURE TO suit was properly directed.

DEMUR TO AMENDED BILL. (Ed. Note.-For other cases, see Trial, Cent. Where, after demurrer was filed to the Dig. $8 332–341; Dec. Dig. § 139.*]

original bill for improper joinder of defendWheeler, J., dissenting.

ants, arr amendment to the bill was filed by consent, to which defendants did not demur,

but answered by a denial, exceptions to over: Appeal from Superior Court, New Haven ruling the demurrer to the original bill will County; Edwin B. Gager, Judge.

not be considered, though the objections urged

are open to defendants on appeal. Action by Charles Rhone against the Sper

[Ed. Note.-For other cases, see Equity, Dec. ry & Barnes Company to recover damages Dig. $ 330.*] for personal injuries alleged to have been 3. MECHANICS' LIENS ($ 276*)-PROCEEDINGS sustained by defendant's negligence. From a TO ENFORCE - CONSTRUCTION OF PLEADING judgment of nonsuit and from an order re

-AMENDED BILL. fusing to set it aside on plaintiff's motion, to enforce a materialman's lien alleged that

Paragraph 6 of the original bill in a suit he appeals. Affirmed.

the contract for the work and material was

made with W., while paragraph 9 alleged that George W. Crawford, for appellant. Ed certain other labor was performed and material mund Zacher and William B. Ely, for ap- furnished by virtue of a contract with W., F.,

and L. An amendment to the bill alleged that pellee.

the items sought to be recovered for under

paragraph 9 were furnished in carrying out THAYER, J. After the plaintiff had intro- | the original contract with W., being additions duced his evidence and rested his case, the thereto made necessary by changes which were

consented to by him and made by his authorcourt granted a motion that judgment as in ity. Hold, that the amendment alleged a difcase of nonsuit be rendered for the de- ferent contract than the original bill with reffendant, and denied the plaintiff's motion to erence to the work and material mentioned in set aside the nonsuit. The record shows and material were furnished to W., so that it

paragraph 9, alleging in effect that such work that there was no evidence from which the operated as a discontinuance as to F. and L. jury could reasonably have found that the [Ed. Note.-For other cases, see Mechanics' defendant was guilty of the negligence al- Liens, Dec. Dig. $ 276.*] leged in the complaint, and that the plain. 4. APPEAL AND ERROR ($_1036*) — HARMLESS

ERROR-UNNECESSARY PARTIES. tiff's own negligence did not essentially contribute to his injury. There was therefore defendant is ordinarily harmless error, which

Since the joinder of unnecessary parties no question of fact to go to the jury pre may be corrected on final decree by making the judgment several, the fact that there was no torney, Charles C. Keene, the plaintiff fur. discontinuance in a suit to enforce a material-nished material and labor, all of which enman's lien as to a defendant who had no interest in the property would not defeat plain- tered into and were used in erecting, contiff's claim.

structing, altering, and repairing the build[EA. Note. For other cases, see Appeal and ings upon which the lien is claimed, and reError, Cent. Dig. 88 4069_4074; Dec. Dig. 8 fers to Exhibit ·A, which reads: 1036.*)

To making piazza for house in Farming5. MECHANICS' Liens ($ 197*)—BONA FIDE dale and furnishing material, and to makPURCHASER-NOTICE-CLERK'S CERTIFICATE ing alterations in said house, as per conOF CLAIM-EFFECT.

tract dated March 21, 1910.....

$800 00 Under Rev. St. c. 93, $ 39, providing that,

Credit. when any bill in which a materialman's lien By discount in not furnishing door is claimed is filed with the town clerk, he shall and stair rail as per contract...... $ 18 00 file in the registry of deeds a certificate stat. By cash

200 00 $218 00 ing the names of the parties and describing the property, etc., the town clerk's certificate, so Balance due....

$582 00 filed, is notice to the world that claimant asserts a lien upon the property described, so that one thereafter purchasing it does so at

Paragraph 9 of the bill reads as follows: his risk.

"That, by virtue of a contract with the [Ed. Yote.-For other cases, see Mechanics' said G. Harold Grant Wing, Flora J. Wing, Liens, Dec. Dig. $ 197.* ]

and L. B. Wing, and with the knowledge and 6. MECHANICS' LIENS (8 166*)—MATERIAL- consent of said owner and mortgagee, the MAN'S LIEN-ACCRUAL.

plaintiff performed certain other labor, and A materialman's lien is created by law furnished certain other labor and materials, when the labor and materials are furnished; and made certain changes in the specificaclaimant being required, to perfect his lien for enforcement by bill in equity, only to record tions of said written contract, all of which his statement of lien in the town clerk's office, are mentioned and described in the stateas required by statute.

ment hereunto annexed and made a part [Ed. Note.-For other cases, see Mechanics' hereof and marked 'Exbibit B,' all of which Liens, Cent. Dig. § 297; Dec. Dig. $ 166.*]

entered into and were used in altering, conExceptions from Supreme Judicial Court, structing and repairing the building located Kennebec County, in Equity.

on said lot." Bill in equity by Charles B. Witham Exhibit B contains 26 items for labor and against Flora J. Wing and others. On ex- material furnished from March 28th to May ceptions and appeal by one of defendants 2d, inclusive. The bill was filed in the after decree' for plaintiff. Exceptions over- clerk's office in Kennebec county, and subruled, appeal dismissed, and decree affirmed. pæna issued, as prescribed by the rules of

Bill in equity brought by the plaintiff, un-court, to Flora J. Wing, L. B. Wing, G. der the provisions of Revised Statutes, chap. Harold Grant Wing, and the Lewiston Trust ter 93, & 33, against Flora J. Wing, L. B. W. & Safe Deposit Company. The defendants Wing, G. Harold Grant Wing, and the Lewis- filed an answer with a demurrer therein. ton Trust & Safe Deposit Company, to en- Afterwards, with the consent of the defendforce a lien upon land and certain buildings ants, an amendment was filed and allowed. thereon, situate in Farmingdale, for labor So much of the amendment as is material is and materials furnished in altering and re- as follows: pairing said buildings. The last-named de- "All the labor and material referred to in fendant was the mortgagee of the premises. Exhibit A of the plaintiff's bill, for which The case went to the law court on excep- the plaintiff seeks to recover, were furnished tions and appeal by defendants.

by the plaintiff by virtue of and in pursuance Argued before SAVAGE, SPEAR, COR- of a contract with the said G. Harold Grant NISH, BIRD, and HALEY, JJ.

Wing, and the other contracts alleged in the George W. Heselton, for plaintiff. Oakes, plaintiff's bill to have been made by G. Pulsifer & Ludden and Eaton, Keene & Gard” Harold Grant Wing, Flora J. Wing, and L. Der, for defendants.

B. Wing, as stated in paragraph 9 and Ex

hibit B of the plaintiff's bill, were merely HALEY, J. This is a bill in equity, additional to and modifications of the said brought by Charles B. Witham, to enforce original contract with G. Harold Grant Wing, a lien upon land and buildings thereon, situ- mentioned in item 6 of the plaintiff's bill, ated in Farmingdale, owned by Flora J. and were made by his authority and with the Wing, for labor and material furnished in consent and knowledge of the owner.” altering and repairing said buildings.

The case was afterwards set down for Paragraph 6 of the bill alleges that, by hearing and was heard, as appears by the virtue of a contract between the plaintiff and record, upon amended bill, answer, admisthe defendant G. Harold Grant Wing, a son sions of record and proof. The justice who of Flora J. Wing, who is alleged to be the heard the case dismissed the bill as to the owner of the land and buildings, executed Lewiston Trust & Safe Deposit Company and for said G. Ilarold Grant Wing by his at-|L. B. Wing, with costs for each, sustained the bill against G. Harold Grant Wing for statute required, it still contained all the $641.46, with interest and cost, with a lien statute required, and was admissible for the upon the buildings and land described in purpose of proving that the plaintiff bad the bill, and ordered the property sold to filed the statement required by law. The satisfy the judgment. The defendant G. fact that the plaintiff stated therein that the Harold Grant Wing claimed an appeal. The work was done and the material furnished case is before the court upon exceptions and by virtue of a contract with G. Harold appeal.

Grant Wing and L. B. Wing, not being reThe plaintiff offered in evidence a copy quired by statute, would not defeat the llen, of the record of the town clerk of the town but would be evidence that the defendants of Farmingdale, where the property in ques- might use to impeach the testimony of the tion is located, which was admitted, subject plaintiff, when he claimed that the contract to objection and exception by the defendant. was made with G. Harold Grant Wing inThis was a record of the lien statement filed dividually, and was undoubtedly used for by the plaintiff in the town clerk's office, that purpose at the argument. In order for under the provisions of section 31, c. 93, R. the plaintiff to maintain his case, it was S., in his attempt to preserve his lien, with- necessary for him to prove that he had filed in 60 days of the time he ceased to labor or in the town clerk's office a certificate confurnish material in the construction, altering, taining the statements prescribed in section and repairing the buildings. The objection 31, c. 93, R. S., and the record was offered was that it was a variance, and did not set and admitted to prove that he had complied forth such a lien statement as corresponded with the statute, not as proof of his claim, to the claim in the bill.

but as proof that the lien claimed had not It contained all the necessary statements been dissolved by his neglect to file the stateprescribed by the statute to preserve the lien ment required by statute within 60 days -a statement of the amount due, credits from the time he had ceased to labor or furgiven, a description of the property sufficient. nish material. ly accurate to identify it, the name of the The case of Thurston v. Schroeder, 6 R. owner-and was subscribed and sworn to. I. 272, cited by the defendant, does not apIn addition, it contained the statement that ply. That was a petition (corresponding to the material and labor were furnished by the bill in equity in this case) for a lien filed virtue of a contract with G. Harold Grant against two persons, as joint contractors, for Wing and L. B. Wing, upon the dwelling work done and material furnished by the house described in the bill, owned by Flora petitioner, and the court held there was not J. Wing.

sufficient evidence submitted to prove that The defendant contends that by the state the contract, as set forth in the petition, ment in said claim that it was "for labor was made by the two respondents, and that done and materials furnished by virtue of the plaintiff suing upon a joint contract of a contract with G. Harold Grant Wing, of Patterson and Schroeder had, by their writPortland, in the county of Cumberland and ten evidence, showed only a several contract state of Maine, and L. B. Wing of Farming- with Patterson, which their parol evidence dale, in the county of Kennebec," afterwards had no tendency to vary. In other words, followed by a charge of $800 for making a the court held that all the evidence intropiazza on the house and furnishing mate- duced by the plaintiff had failed to prove rials, as per contract dated March 21, 1910, the contract alleged. In this case the claim and by the further statement, "to other work filed in the town clerk's office was not offerand other materials furnished by contract ed or received as evidence of the contract. with G. Harold Grant Wing and consent of The defendant's position that a different the owner,” two separate lien contracts are contract was proved than the one alleged shown, and that the plaintiff cannot prove could only be taken after the evidence was and recover in this action judgment against all in, at which time the statement in the G. Harold Grant Wing and the land and record of the town clerk's office should have buildings mentioned upon his individual con- been considered with the other evidence, to tract, and upon the joint contract of G. Har- show whether the labor and material were old Grant Wing and L. B. Wing.

furnished upon the individual contract of [1] The statute does not require the claim G. Harold Grant Wing, or upon the joint filed in the town clerk's office to contain contract of G. Harold Grant Wing and anthe name of the person with whom the lien- other. or contracted. The paper was offered in evi- In the case of Palmer v. Lavigne, 104 Cal. dence to show that the plaintiff had com- 30, 37 Pac. 775, also cited by the defendant, plied with the statute in regard to filing his there was a demurrer to the complaint, bestatement in the town clerk's office within cause it could not be ascertained from an 60 days of the time he ceased to labor or inspection whether the contract alleged in furnish material, and was admitted in evi- the complaint to have been entered into dence for that purpose. It was admissible by the plaintiff and the defendants was for no other purpose, when offered by the made by Mary C. Lavigne or by the defend

а