(115 A.) supported testimony of the plaintiff. The court was not bound to believe her testimony, though not directly contradicted. Miller v. Miller, 89 Vt. 547, 95 Atl. 928. The circumstances and her appearance as a witness were for consideration, and we are unable to say that the court erred in failing to find her claim of a new promise sustained. sary to say more in view of our conclusions | ing the finding. The issue stood on the unon the other phase of the question. We think it should be held that the findings make a case of fraudulent concealment within the provisions of G. L. 1863, on the ground that the conduct of Gates L. in reference to the withdrawal unmistakably evidences a design to prevent discovery, and that his acts were calculated to operate, and in fact did operate, as a means of concealment. In principle the case is not unlike a similar action against a thief to recover for money feloniously taken and converted. It would be a manifest perversion of the statute to say that the care fully laid plan by which he acquired the money and escaped detection for more than six years was not a fraudulent concealment of the cause of action, and that, having thus kept his victim out of his rights, the statute of limitation could be successfully invoked for his protection. The mere statement of the proposition carries its refutation. The exception to the disallowance of this item of plaintiff's specification is sustained. [6] Defendant makes the point that the pleadings did not raise the issue of fraudulent concealment. Doubtless the burden was upon the plaintiff to avoid the statute of limitations which was interposed in bar of the action; and good pleading may have made a replication necessary, if the objection had been seasonably and properly raised. But the issue was tried as though properly pleaded. The record states that no question was made on trial as to the pleadings or their sufficiency, and so the objection made for the first time here comes too late to avail. [7] The plaintiff saved an exception to a finding that all of the items of plaintiff's specification, except two that had been paid, were barred by the statute of limitations, if they were ever due the plaintiff, on the ground now relied upon that there was evidence which was undisputed, tending to show a new promise on the part of Gates L. which took all of the items out of the statute. It is to be observed that there is no finding that any of these items, except the money withdrawn from the bank, were ever due the plaintiff; and the record shows no exception to the failure of the court to find in respect thereto. The claims are disposed of by the finding that they are barred and the further statement, "Therefore we deem it unnecessary to make further findings of fact in respect to them." Standing thus, the exception saved would not show reversible error. In the discussion of this exception the plaintiff insists that the defendant cannot rely upon the statute of limitations, as it was not properly pleaded, but, as in case of a similar point made by the defendant, the objection is out of time. The parties were satisfied with the pleadings on the trial, and neither can now be heard to complain. Judgment reversed, and judgment for the plaintiff for $375.91, with interest from January 10, 1910, and costs of suit. Let the result be certified to the probate court. 2. Pleading 21-Allegations that defendant requested plaintiff to go on premises held not restricted by subsequent allegations that such visit was at request of defendant's servant. In an action for injuries to an invitee, allegations that defendant "requested, lured, and induced" plaintiff to go on the premises were not restricted in their meaning by subsequent allegations that defendant, acting through its duly qualified agents and employees, requested, etc., and that defendant's employee, acting within the scope of his employment and in the exercise of authority given him by defendant, requested, etc.; such allegations being all to the same effect, and the proof, if it conformed to the last, being consistent with the others. 742(5)-One 3. Municipal corporations [8] However, the plaintiff's position on the question argued is untenable. If, as plainIn an action against a village for injuries tiff claims, the defendant waived the require to an invitee coming to its power plant, plainment of the statute that the new promise be tiff could not rely on an express invitation in writing by not objecting seasonably to the from defendant's employee in charge of the parol evidence offered in support of it, still plant, in the absence of proof that he had authe evidence was not of a character compell-thority from defendant as alleged. 4. Appeal and error 232(11⁄2)—Grounds of this court before trial on the defendant's exdemurrer, not raised on trial, not consid- ception. ered. Grounds of demurrer to a pleading, not raised on the trial, need not be considered on appeal. The main question raised by the demurrer, as at the former hearing, is whether it appears from the complaint that at the time of the injury the plaintiff was at the place 5. Pleading 187-Demurrer should test of the accident by the invitation of the desufficiency of pleading only in matters of sub- fendant, express or implied. The plaintiff stance. has undertaken by amendments to supply the Since the sufficiency of all pleadings in re-shortage in this regard found in the original spect to form is left, under G. L. 1795, to the complaint. In other respects the allegations discretion of the trial court, and uncertainty is are substantially the same, and are suffia matter to be dealt with by a motion to expunge, or some other appropriate action, un- ciently stated in the former opinion. Bearder G. L. 1793, the legitimate use of the de- ing upon the question at issue, it is now almurrer is to test the sufficiency of a pleading leged that at the time of plaintiff's injury only in matters of substance. defendant's power house was operated continuously, and was in charge of one of three employees who worked different shifts, only one of whom as a rule was on duty at any time, and who, when so alone on duty, had full charge of the plant. After setting forth the defects complained of, the attendant dangers, and the duty of the defendant to exercise active care to warn the plaintiff thereof and keep him outside the power house, it is alleged that the defendant did not perform its duty in that regard, but, on the contrary, before and on the day of the injury to the plaintiff "by word of mouth to the plaintiff spoken, and otherwise, requested, lured, and induced the plaintiff to go upon said premises into said power house," to the place where the accident occurred, at the time and for the purpose for which the plaintiff was within the power house at the time of his injury. Then fol 6. Negligence 32 (2)—“Invitation" defined. To come on premises under an implied "invitation," as distinguished from a license, the visitor must come for a purpose connected with the occupant's business, and there must be some mutuality of interest in the subject to which the visitor's business relates. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Invitation.] 7. Negligence 110-Allegations held to show boy carrying food to employee was an invitee. In an action for injuries to a boy entering a power house, allegations that he came at the request of the defendant's employee in charge, for the purpose of carrying necessary food to him while on duty, held to support an inference that plaintiff was an invitee, and not a mere licensee. Exceptions from Franklin County Court; low several paragraphs of the complaint, in Zed S. Stanton, Judge. which the facts relied upon as a basis of an invitation are stated at considerable length. The allegations are in substance these: Action by Irving E. Coburn against the Village of Swanton. To the action of the court, overruling its demurrer pro forma without hearing, defendant excepts. Affirm-name, had for several months before the ed and remanded. Argued before WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and CHASE, Superior Judge. One of the three employees, Barr by plaintiff's injury been working a shift that called him on duty at 12 o'clock midnight and kept him on duty until 12 o'clock noon the day following. The character of his work and the rules of the defendant requirD. W. Steele, of Highgate, and Elmer ed him to be constantly at his post during Johnson, of St. Albans, for plaintiff. the hours of his shift. While on duty, Barr F. L. Webster and D. G. Furman, both of had full charge and supervision of the power Swanton, for defendant. TAYLOR, J. This case has once before been here on a question of pleading. It was then heard below on demurrer to the complaint, and came here on plaintiff's exception to the judgment sustaining the demurrer. This judgment was affirmed, and the cause remanded, with leave to apply. Coburn v. Village of Swanton, 94 Vt. 168, 109 Atl. 854. An amended complaint was there upon filed, to which the defendant demurred. The demurrer was overruled pro forma without hearing, and the cause passed to house and plant, with full authority from the defendant to admit the plaintiff on behalf of the defendant to the part of the power house where he received his injury, at the time and for the purpose for which the plaintiff was then within the power house. It was to the interest and advantage of the defendant that Barr, while on duty, should have suitable food and drink carried to him each morning. There was no food kept on or near the defendant's premises, and the only way that Barr could be supplied with the necessary and suitable warm food and drink for his mid-shift meal, while on duty, (115 A.) was to have such meal carried to him, all | alleged. Therefore it is unnecessary for of which was well known to the defendant. present purposes to inquire whether the status of one expressly invited is affected by the purpose of the invitation. The point is made that the allegations to the effect that the defendant "requested, lured, and induced" the plaintiff to go upon the premises, etc., are mere conclusions of law, and are restricted in their meaning by subsequent allegations, in substance that plaintiff's visit was at the request of defendant's servant, Barr. The defendant relies principally in support of this claim upon Kennedy v. North Jersey St. R. Co., 72 N. It is then alleged in separate paragraphs that on divers times before plaintiff's injury (1) the defendant, acting through its duly qualified agents and employees, and (2) the said Barr, acting within the scope of his employment as the servant of the defendant and in the exercise of the power and authority given to him by the defendant already alleged, by word of mouth requested the plaintiff to carry food and drink to Barr each morning while he was working his shift, including the morning of the injury. Then follow allegations that for sev-J. Law, 19, 60 Atl. 40, and Kubinak v. Leeral weeks, including the day of his injury, the plaintiff, who was then a boy of about 12 years of age, "did, by reason of, and in acceptance of said solicitations, requests and invitations of the defendant and the defendant's said servant made to the plaintiff as aforesaid, and with the knowledge and approval of the defendant, carry the defendant's servant Barr necessary, suitable and proper warm food and drink for his midshift meal each morning that said Barr was on duty," etc. The previous allegations are then summed up in a paragraph concluding with a statement of the circumstances of the accident. high Valley R. Co., 79 N. J. Law, 438, 75 Atl. 443, in which it was held that the words "invited," "induced," and "lured," as there used, were not allegations of fact. These decisions were by the Supreme Court of New Jersey and have little force as precedents. In Hess v. Public Service R. Co., 84 N. J. Law, 329, 86 Atl. 951, the Court of Errors and Appeals of that state, in deciding that an allegation that the plaintiff was "requested" to board a car sufficiently alleges an invitation, declined to follow these decisions. [1-3] It is too plain to require argument that the language employed here is not open to the objection that it does not allege a fact. Nor can we agree that it is restricted in meaning as the defendant contends. In one paragraph of the complaint it is alleged that the defendant requested, etc.; in another, that the defendant, acting through its duly qualified agents and employees, requested, etc.; and in still another, that Barr, acting within the scope of his employment as the servant of the defendant and in the exercise of authority given to him by the defendant, requested, etc. In the circumstances, these allegations are all to the same effect. If the proof conforms to the last allegation, it is consistent with the others; but, if the plaintiff fails to show that Barr had the authority from the defendant elsewhere alleged, he could not rely upon an express invitation through Barr. The ultimate question of the defendant's liability is whether the facts alleged show that the defendant owed the plaintiff the duty of active care; and this, in turn, depends upon whether the latter was at the place of the accident by the invitation of the defendant, express or implied. In the original complaint there was no allegation of an express invitation, and we held that an invitation could not be implied from the facts then alleged, as it did not appear that the purpose for which he entered the premises was one of interest or advantage to the defendant, without which it could not be inferred that he was there as an invitee and not as a licensee. Plaintiff now undertakes to allege an express invitation. He contends that such an invitation is sufficiently alleged, and that, if established, the allegations respecting the purpose of his visit become immaterial, as it is only when the invitation is sought to be implied that it becomes nec-jection now urged that these allegations are essary to show that the purpose of the visit was one of interest or advantage to the defendant. That is to say, if on trial it should be shown, as alleged, that the defendant acting through a duly authorized representative expressly requested the plaintiff to deliver Barr's breakfast to him at the time and place of the accident, the duty of exercising active care for his safety while so doing would necessarily follow. The defendant does not controvert the soundness of this proposition, but relies upon the claim that an express invitation is not properly [4, 5] This is as far as the ground of demurrer assigned requires us to go. The ob inconsistent and bad for repugnancy was not raised, and so need not be considered. However, we take this opportunity to call attention to the fact that under the Practice Act the scope of a demurrer is somewhat restricted. The sufficiency of all pleadings in respect of form is left to the discretionary determination of the trial court. G. L. 1795. Uncertainty in any pleading is a matter to be dealt with by a motion to expunge, or some other appropriate action. G. L. 1793. Under reformed procedure, the legitimate use of the demurrer is to test the sufficiency of a pleading in matters of substance. See N. E. 78. It is said in the case last cited that the distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns largely on the nature of the business that brings him there, rather than on the words or acts of the owner which precede his coming. From what has been said, it is evident that invitation in the technical sense, from which the duty of active care arises, differs from invitation in the ordinary sense, implying the relation of host and guest, or a mere licensee. [7] Tested by these rules, we think this ground of the demurrer was not well taken. Sufficient facts are now alleged to support an inference that the plaintiff was at the place of the accident as an invitee, and not as a mere licensee. The defects held fatal to the original complaint have been cured by amendment, and no valid ground of demurrer is now disclosed. Whether the proof on trial will support the amended allegations is quite another question, with which we are not now concerned. It would unnecessarily prolong the opinion and serve no good purpose to discuss the points raised in defendant's brief in detail. Such questions as are properly raised on demurrer are suf [6] The demurrer also raises the objection that the amended complaint does not make a case of implied invitation. Confessedly, this depends upon whether it sufficiently ap pears that the purpose of plaintiff's visit to the power house was, in legal contemplation, for the interest or advantage of the defendant. It was said in Bottom's Adm'r v. Hawks, 84 Vt. 370, 79 Atl. 858, 35 L. R. A. (N. S.) 440, Ann. Cas. 1913A, 1025, that a naked trespasser or bare licensee enters for purposes of his own; he acts for his own benefit or convenience and the owner gains nothing. But, if invited, one enters not alone from motives of his own uncontributed to by act of the owner, but is induced, in some measure, by the conduct of the latter. The owner, in contemplation of law, gains something from the arrangement, though his advantage need not be a pecuniary one. However, the visit to the premises need not be for the sole benefit of the owner, but an invitation, as distinguished from a license, may be inferred where there is a common interest or mutual advantage. Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. Stficiently covered by what has been said in Rep. 463, is a leading case on the subject. this and our former opinion. The rule is there stated that to come under Affirmed and remanded. an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business with which the occupant of the premises is engaged, or which he permits to be carried on there. There must be some mutuality of interest in the subject to which the visitor's business relates, although the particular business which is the object of the visit may not be for the benefit of the occupant. (95 Vt. 327) HITCHCOCK v. KENNISON. (No. 314.) (Supreme Court of Vermont. Orleans. Oct. 4, 1921.) 1. Appeal and error 1071(6)—Judgment for plaintiff, unsupported by findings, held not without prejudice to defendant. for an injunction to restrain defendant from In suit to reform a deed for mistake, and prosecuting an action at law on the covenants of plaintiff's deed, where the master failed to find that plaintiff was entitled to relief in reference to his covenant against incumbrances, Among the many cases approving this rule are Purtell v. Philadelphia, etc., Coal Co., 256 Ill. 110, 99 N. E. 899, 43 L. R. A. (N. S.) 193, Ann. Cas. 1913E, 335, and Atkins V. Lackawanna Trans. Co., 182 Ill. 237, 54 N. E. 1004, in each of which it was held that a boy, employed as a water carrier by servants of the defendant with the latter's knowl-but found that nothing was said by the plaintiff edge, was not a mere licensee, and Illinois to defendant purchaser with relation to a mortCent. R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. gage on the premises, and that defendant had 656, where one was injured while going to reformation of the deed in this regard, and an no knowledge of it, it was error to decree a a depot to deliver meals to mail clerks on injunction restraining defendant from asserting a train in accordance with an agreement any damages for breach of the covenant against with such clerks, the practice having been incumbrances, and the error could not be followed for considerable time with the deemed immaterial, on the ground that defendknowledge and consent of the railroad com- ant's suit at law had been long since disconpany. Other late cases are East Hill Cem. tinued, where the docket entries in that case Co. v. Thompson, 53 Ind. App. 417, 97 N. E. showed the death of plaintiff suggested and that 1036; Meiers v. Fred Koch Brewery, 229 N. istrator, since, if, as was probable, the action the case was being prosecuted by his adminY. 10, 127 N. E. 491, 13 A. L. R. 633; Kidder at law was discontinued by the appointment of v. Sadler, 117 Me. 194, 103 Atl. 159; Mil- commissioners, defendant would be entitled to auskis v. Terminal R. Ass'n, 286 Ill. 547, 122 | present a claim for costs, if only for nominal (115 A.) damages, under G. L. 3305, which, by the de-19. Appeal and error 931(3)-Presumption cree, defendant was restrained from doing. that facts found supported decree. 2 Appeal and error 273(9)—Ground of exception to referee's findings must be specified below. It will be assumed on appeal that the chancellor inferred from the facts found any fact fairly inferable therefrom and necessary to support the decree, but it will not be assumed, Under chancery rule 39, where exceptions for the purposes of a reversal, that the court were filed to additional findings of a master, no below drew any inference not affirmatively ground of exception being specified, the ob- shown in the record, unless the same is a necjector could not challenge the findings, on ap-essary inference from the facts found. peal, as unsupported, for, to save a question for review, the ground of exception must be specified below. 3. Reformation of instruments ed either for mistake or fraud. 16-Award 10. Appeal and error 931 (4)—No unfavorable inferences as to appellee. Where the facts reported did not show that appellee, plaintiff below, was negligent as a matter of law, the Supreme Court could not supply the fact by inference. Appeal in Chancery, Orleans County; Alfred A. Hall, Chancellor. Where both plaintiff grantee and defendant grantee knew that a half-acre piece was not included in the premises sold, and the subsequent deed, including it, did not express the true intention of the parties, the fact that the special master was unable to say beyond a rea- Suit by Charles W. Hitchcock against sonable doubt whether the mistake was mu- George Kennison. Heard on the pleadings tual did not leave the plaintiff without remedy, and special master's report. From decree since, if defendant was aware of the mistake, his conduct in remaining silent was manifestly for plaintiff, defendant appeals. fraudulent, so that plaintiff was entitled to re- and remanded. lief for either mutual mistake or mistake on plaintiff's part to which defendant's fraud con tributed. 4. Equity 407-Findings of master in refor. mation suit need not state proof beyond reasonable doubt. While equity will not correct a mistake in an instrument, unless a mistake appears "beyond a reasonable doubt," and a special master, finding and reporting the facts, must be governed by this rule, yet, if his findings are sustained by such measure of proof, this is sufficient, though he does not expressly state that they are sustained by proof "beyond a reasonable doubt"; the expressions "thoroughly convinced" and "well satisfied" being sufficient. 5. Appeal and error 268(3)-Exception to degree of proof sustaining findings necessary to review. Reversed Argued before WATSON, C. J., POWERS and TAYLOR, JJ., and FISH and CHASE, Superior Judges. F. D. Thompson, of Barton, and Frank S. The cause TAYLOR, J. The bill is brought to reform a deed from the plaintiff to the defendant and for an injunction to restrain the defendant from prosecuting an action at law on the covenants of the deed. was heard in the lower court on the pleadings and the report of a special master. The plaintiff had a decree in accordance with the prayer of the bill, and the defendant appeals. Where there was no exception to the special The plaintiff acquired the premises in master's report on the ground that it did not appear that the master had reached his find-question April 30, 1886, from I. D. and Orings with the requisite degree of certainty, the question is not open to review. phia Bean. They consisted of a house, barn, and about 49 acres of land. In November, 1887, by warranty deed the plaintiff conveyed the house and one-half acre of land (called in the master's report the half-acre piece) to Burton Kennison, a brother of the defendant, who held the title and lived there for about 71⁄2 years. The half-acre piece was conveyed to one Besaw in August, 1897, who, in turn conveyed the same to Moses Kennison, the father of the defendant, 7. Appeal and error 858-In equity cases in December, 1899. On December 11, 1895, Supreme Court sits in error only. the plaintiff executed a mortgage of the en In chancery cases the Supreme Court sits tire premises conveyed to him by the Beans, in error only. 8. Appeal and error favor decree. with certain other real estate, to one Ma931(1)—Presumptions comber to secure a debt of $1,100, and on January 22, 1900, by deed with full covenants of warranty, he conveyed to the defendant the same premises described in his deed from the Beans, excepting neither the half The Supreme Court is bound to make every reasonable intendment in support of a decree in chancery. |