Doolin, took the old coat, and promised to make the plaintiff a new coat, and took measurements therefor. At the time the measurements were taken for the new coat Mr. Doolin explained that the price of fur had advanced, and it was agreed that the plaintiff should have a new coat and should pay for it $37.50 in addition to what he had already paid. This did not mean that the plaintiff was to have a new coat in addition to the old coat, but that the old coat, originally returned for repairs, was taken back by the defendants, and that the money paid therefor was to be applied towards the payment for a new coat. This was a rescission of the original sale by mutual agreement; and, this being so, it matters not that the defects in the first coat were not sooner

complained of, nor that there was no fraud, nor that the first coat was like the sample, nor whether the parties could be put in their former situation, nor whether for any reason the plaintiff had the right of rescission. The parties to a trade may by mutual consent rescind it for a poor cause or for no cause. If they are satisfied, the law is satisfied. Blood v. Enos, 12 Vt. 625, 629, 36 Am. Dec. 363; Davenport v. Crowell, 79 Vt. 419, 434, 65 Atl. 557; Williston's Wald's Pollock on Contracts, 815. Though it should seem that an executory agreement to rescind an executed contract requires a consideration, the question is not here involved, for the agreement to rescind which the plaintiff's evidence tended to show did not remain executory, since the evidence tended to show

that the defendants took back the old coat in pursuance of the agreement.

defendants repudiated their obligation with respect to furnishing a new coat, and so gave the plaintiff a right to sue for and recover the $240 which, after the rescission of the first contract, they had kept under an agreement to apply that sum towards the price of a new coat which was never furnished through their fault. This state of facts, which the plaintiff's evidence tended to show, gave the plaintiff a right to recover the $240 under the money counts in general assumpsit. State v. St. Johnsbury, 59 Vt. 332, 10 Atl. 531; Packer v. Button, 35 Vt. 188; Packer v. Steward, 34 Vt. 127, 153; Hemenway v. Smith, 28 Vt. 701, 708; Way v. Raymond, 16 Vt. 371; Colgrove v. Fillimore, 1 Aikens, 347.

[7] We have considered the evidence in the light most favorable to the plaintiff, as must always be done when a case is taken from the jury by the direction of a verdict for the defendant. Morris v. Trudo, 83 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33. On vital questions the evidence was contradictory. The defendants in particular claimed that, while they sold the first coat, the plaintiff's agreement with regard to the second coat

was with a New York house, Messrs. J. P. Cohen & Bro., who made, or procured to be made, both coats, and whose customers the defendants had for a long time been; and that by the agreement the old coat went to Cohen & Bro., and that in further consideration for the new coat $65 in money was to be paid to Cohen & Bro.; that is, $37.50 by the plaintiff and $27.50 by the defendants.

[8] One ground of the defendants' motion for a verdict was that there was a variance

[6] There was evidence with regard to the between the declaration and the evidence. second coat, and the doings with regard to it, There was no variance between the declaraof the following purport: The second coat tion proper and the evidence, for the declait was agreed should be first class in every ration was in the common counts only. The respect. When the second coat was offered, plaintiff's specification was for $240 paid to it was found to be defective and different the defendants in the fall of 1907, or the from the coat bargained for in the character

But

early part of 1908. It was specified that the money was paid for a fur garment described in the specifications as "worthless." throughout the trial the question made was whether the plaintiff was entitled to recover the $240 on any ground, and the word "worthless" in the specification might well be treated as surplusage or the specification be treated as amended to correspond to the issues actually made. Greenwood v. Smith, 45 Vt. 37; Phelps v. Conant, 30 Vt. 277; Hicks v. Cottrill, 25 Vt. 80, 86.

and kind of skins used. It was not accepted, but was promptly returned to the defendants with notice that it was not accepted. Mr. Doolin said to Mrs. Fitzsimons that he was going to New York in a few days, and that she would hear from him. He told her in substance that he would not accept the coat if he was in her place. She left the coat with him, but has never heard from him. Mr. Fitzsimons called Mr. Doolin up over the telephone and asked him what he was going to do about that coat. Mr. Doolin replied to the effect that he was not going [9] If, then, we assume that the specifica. to do anything about it, that it was that tion may be treated as a part of the declacoat or nothing. Mr. Fitzsimons said: "Iration in considering the motion on the shall call on you for my money for the coat." Time went on, a year or so, the defendants did nothing about the coat, and this suit was brought. Mr. Doolin testified, in substance, that he took the second coat to New York, and that he notified the plaintiff that originally paid as the purchase price of the the defendants were through with the mat- fur coat referred to in the specification.

ground of variance, there is no variance "affecting the right of the matter," for whatever the effect of the transactions referred to, as the plaintiff's evidence tended to show them, he was seeking to recover the money

See, also, 218 U. S. 664, 31 Sup. Ct. 225, 54 L. Ed. 1201.

Argued before ROWELL, C. J., and MUN-
SON, WATSON, HASELTON, and POW-
ERS, JJ.

Harland B. Howe, of St. Johnsbury, for de-
G. C. Frye, of St. Johnsbury, for plaintiff.

fendant.

be heard here, except such as were "raised | ment for plaintiff, and defendant brings exand passed upon in the county court." P. S. ceptions. Judgment affirmed. 1986; Gibson v. Wheldon, 82 Vt. 176, 72 Atl. 909; Dano v. Sessions, 65 Vt. 79, 26 Atl. 585; Holdridge v. Holdridge's Estate, 53 Vt. 546; Morey v. King, 49 Vt. 304. What the defendants say in their brief in support of the motion on the ground of variance is that there is no proof of the promise declared upon. That the "proof is that a different coat from that declared on was sold to the plaintiff in 1910 for a different consideration, namely, the return of the old coat and the payment of $37.50 by plaintiff and $27.50 by defendants, and it is not claimed to be worthless." The defendants are here arguing on their claim as to the evidence, which contradicts the claim and evidence of the plaintiff, for

the payment of $27.50 by the defendants to the plaintiff or to Cohen & Bro. or to any body else was not provided for in the agreement which the plaintiff's evidence tended to show. In such circumstances no question of variance arises. Norcross v. Welton, 59 Vt. 50, 7 Atl. 714; Curtis v. Burdick, 48 Vt. 166. [10] Besides, the question of variance here argued, though raised in the county court, was not "passed upon" there, within the meaning of the statute, for the proceedings on the motion, containing various grounds, were entirely pro forma, and in dealing with a variance not "affecting the right of the matter" the court has a discretionary power, and such power cannot be exercised "pro forma." Ainger v. Webster, 85 Vt. 82 Atl. 666; Lincoln v. Central Vt. Ry. Co., 82 Vt. 187, 72 Atl. 821, 137 Am. St. Rep. 998; Massucco v. Tomassi, 80 Vt. 186, 67 Atl. 551; State v. Newell, 71 Vt. 476, 45 Atl. 1045; Ranney v. St. Johnsbury & Lake Champlain R. Co., 67 Vt. 594, 32 Atl. 810; Johnson v. Shumway, 65 Vt. 389, 26 Atl. 590.

HASELTON, J. This is an action of general and special assumpsit. The general issue was pleaded, and the case was tried by the court. On facts found and filed, judgment was rendered for the plaintiff to recover damages in the sum of $45.85 and its costs of suit. The defendant excepted.

The plaintiff is a corporation engaged in the business of furnishing instruction by means of correspondence. It was chartered under the laws of Pennsylvania, and is 10cated anl is doing business at Scranton in that state. At all times material to the case, it had an agent at St. Johnsbury in this state, whose duties were to solicit persons to take the instruction furnished by the plaintiff, and to secure from each proposed student his signature to an offer or proposal, called a "contract for scholarship," and at the time of the signing to get from the proposed student $5, which sum, with the proposed contract, it was the business of the agent to forward to the plaintiff for acceptance or rejection.

A sufficient statement of the contract in question and of its breach by the defendant is made in our former opinion in this case, 81 Vt. 101, 69 Atl. 541, and for convenience we copy it here: "In January, 1905, tered into a written contract with the plainthe defendant, at the agent's solicitation, entiff, the substance of which was that the plaintiff was to furnish him a course of correspondence instruction in sald school upon the subjects embraced in the 'Building and Contractors Scholarship,' with copyrighted instruction papers, examination questions, and drawing plates prepared for such scholarship, for which the defendant was to pay the plaintiff $5 when he signed the contract and $5 each month until $63.90 was paid, or $57.60 if full payment was made within 60 days. Upon full payment, the defendant was to be entitled to a certificate of scholarship, etc. The first $5 and the contract were forwarded to and accepted by the plaintiff, (Supreme Court of Vermont. Caledonia. Oct. which in return sent volumes of instructions

All other questions raised and argued are either governed by the holdings thus far made or are rendered immaterial by them. Pro forma judgment reversed, and cause

remanded.

(86 Vt. 215)

INTERNATIONAL TEXT-BOOK CO. v.

LYNCH.

21, 1912.)

CONTRACTS (§ 354*)-ACTION FOR BREACH-
FINDINGS SUFFICIENCY-DAMAGES.

In an action for breach of a contract to accept and pay for a correspondence scholarship, a finding that no damages were claimed by or resulted to plaintiff through defendant's refusal to carry out his contract, except his refusal to pay as required by such contract, authorizes award of damages to the amount of the unpaid balance of the contract price.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 354.*]

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

to the defendant, who subsequently made four monthly payments upon the contract, when he notified the plaintiff's agent that he should make no more payments and proceed no farther under the contract. plaintiff has always been ready to perform the contract on its part. The defendant never took any of the instructions furnished him."

The

The plaintiff never complied with the requirements which our statutes make of foreign corporations, in general, that would do business in this state and maintain suits in our courts, and for that reason, when the Action by the International Text-Book case was here before, it was held that the Company against Connell R. Lynch. Judg-action could not be maintained in our courts.

HASELTON, J. This is a petition for divorce brought to the Caledonia county court. The court made a finding of facts and dismissed the petition for want of jurisdiction. The petitioner excepted.

The parties were married August 9, 1890. More or less trouble arose between them which it is needless to refer to. September 27, 1910, in the nighttime, while they were living in Johnson, in the county of Lamoille, the husband inflicted some violence upon the person of the petitioner, and attempted to eject her from his house. The court found that this conduct amounted to intolerable severity, and say that they would have granted the bill if the residence necessary to give the Caledonia county court jurisdiction had been made out. The day following the night referred to the petitioner left her husband's abode, taking with her furniture which she claimed to own, and all her clothing and personal belongings. The furniture she stored in a neighbor's barn, where it has since remained. She shortly afterward went to Hardwick, in the county of Caledonia, where she worked out for awhile, and afterwards she went to St. Johnsbury in the last-named county to live with and take care of a woman there resident. Her clothing and personal belongings she took with her from John-, son to Hardwick, and from Hardwick to St. Johnsbury. Since leaving her husband the petitioner has never intended to return to live with him, but has had the intention of living apart from him, and it is her intention to make her home in St. Johnsbury with the woman with whom she lives. The facts found show a residence in St. Johnsbury unless her residence continues to be that of her husband; but the court below failed to find that she resided in Caledonia county on the ground that a wife has not the power "to set up a residence independent of the husband in another place in this state where the husband continues to keep up his residence which the wife has left."

[1] However, where a husband has given his wife cause for divorce, she may leave him and establish an independent residence, and this may be in another county. This our statute recognizes, for it says that petitions for divorce shall be heard and determined in the county in which the parties reside or in which one of them resides, thus recognizing that, in contemplation of the divorce law, they may have separate residences in different counties within this state. P. S. 3070. A husband forfeits the right to determine the residence of his wife when he gives her a ground of divorce as by intolerable severity. 2 Bishop, Marriage, Divorce, and Separation, §§ 112, 127; Chief Justice Shaw in Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Cheever v. Wilson, 9 Wall. 108, 19 L. Ed. 604. A full discussion of the question is found in a note to McGrew v. Mutual Life Ins. Co., 84 Am. St. Rep. 27, in subdivisions 3, 6, and 8. Our statute relating to separate support and kindred matters, when a wife is for a justifiable cause living apart from her husband, provides that her petition to secure her rights may be brought in the county in which

either of the parties resides, except that, if the petitioner has left the county in which the parties have lived together and the husband still resides therein, the petition shall be brought in that county. P. S. 3108. The court below seems inadvertently to have gone upon the theory that jurisdiction in divorce cases and jurisdiction under this statute are determined by the same facts. But these matters are proper for statutory regulation, and have been determined by the Legislature in the manner indicated.

[2] In this case the parties have long resided in this state and the severity complained of was inflicted in this state, and due service was made upon the petitionee. We find no occasion for discussing the law applicable to the question of jurisdiction in cases of a different character. Mr. and Mrs. Patch have two children, and they have continued to live with their father. The findings refer to this fact, and also the storing of the wife's furniture in the town of the husband's residence. If these facts were entitled to weight in the consideration of the case by the trial court, they are of no consequence here, in view of the controlling findings already referred to. On the findings the court should have taken jurisdiction of the case.

Judgment reversed and cause remanded.

On Motion for Rehearing.

After judgment, but during the term, and before the cause was actually remanded, the petitioner moved for final judgment here, and submitted a brief calling attention to numerous cases in which this court, upon reversal of a judgment, has rendered such judgment as it has appeared that the court below should have rendered. But a suit for a divorce is not altogether a private action, and, without reference to pleadings or technical rules, the court granting a divorce should be apprised, if necessary marital relation at the time when judgment is by its own action, of the character of the rendered dissolving it. Burton v. Burton, 58 Vt. 414, 5 Atl. 281. Therefore, in cases standing as this does, the interests of society require, not a final judgment, but a remand to the court authorized by law to determine questions of fact. P. S. 3075.

Barney v. Cuness, 68 Vt. 51, 33 Atl. 897, was a petition for a decree of nullity, and was dismissed by the county court on the ground, aparently, of want of jurisdiction. In that case this court reversed the judgment of the county court, and decreed that the marriage in question was null and void. But that was a case absolutely void, for when it was celebrated the of a marriage declared by the statute to be woman had a former husband living. P. S. 3052. In such a case the court has nothing to pass upon but the question of the nullity of the marriage, and the case is no authority here.

The petitioner suggests that, if a final judgremanded with directions to the court below to ment is not rendered here, the case should be render a decree of divorce. But what has already been said meets this suggestion. In holding that the county court has jurisdiction of the case, and in remanding it, we conserve the petitioner's rights, and also the interests of ill afford further costs; but neither that suggessociety. It is suggested that the petitioner can tion nor any other is a reason for the establishment of an unwise precedent.

Motion overruled.

(86 Vt. 250)

SPEAR'S ADM'R ▼. ARMSTRONG et al. (Supreme Court of Vermont. Windsor. Oct. 21, 1912.)

tiff filed an amended declaration not setting up the plaintiff in any new or different character, but alleging as the cause of action a promissory note given by the defendants

1. PLEADING (§ 238*)-AMENDMENT-DIFFER- to the plaintiff's intestate. The ad damnum ENT CAUSES OF ACTION.

In determining an issue as to whether an amended declaration pleaded a cause of action different from that stated in the original declaration, it was proper for the court to hear testimony outside the record to show that both were for the same cause of action.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 602, 620-625; Dec. Dig. § 238.*] 2. APPEAL AND ERROR ($ 1008*)-FINDINGS -CONCLUSIVENESS.

A finding that an amended declaration did not introduce a new cause of action is conclusive, unless it appears as a matter of law on the face of the pleadings that a new cause of action was in fact introduced by the amendment.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 3955-3969; Dec. Dig. § 1008.*]

3. PLEADING (§ 248*) ·

AMENDMENT NEW CAUSE OF ACTION-CAPACITY OF PARTIES. An original declaration in general assumpsit described the plaintiff as M., administrator of S., deceased. It contained only the common counts, representing the promises alleged as made to plaintiff, rather than to the intestate, in consideration of an indebtedness of the defendants to plaintiff, rather than to the intestate. On appeal to the county court, an amended declaration was filed, not setting up the plaintiff in any different character, but representing as the cause of action a note given by the defendants to plaintiff's intestate; the ad damnum in both declarations being the same. Held, that the amended declaration did not set up a new and different cause of action. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*] Exceptions from Windsor County Court; Fred M. Butler, Judge.

Action by Francis E. Spear's administrator against Myron G. Armstrong and another. Judgment for plaintiff, and defendant Myron G. Armstrong brings exceptions. Affirmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS,

JJ.

James G. Harvey, of White River Jct., for plaintiff. William Batchelder, of Woodstock, for defendant.

HASELTON, J.

in both declarations was the same. The defendant Myron G. Armstrong objected to the filing of the new declaration, and moved its dismissal on the ground that it was for a different cause of action than that set up in the original writ. Thereupon the court took testimony, and from that determined that the original declaration was for the same cause of action as the amended one, and overruled the motion to dismiss. To this action of the court an exception was taken by the defendant Myron, and a bill of exceptions was signed and ordered to lie. At a later term the case was tried by jury on the amended declaration solely, and verdict and judg ment were for the plaintiff.

The only question before us is whether the amended declaration was for a new cause of action.

[1] In inquiring outside the record whether or not the two declarations were for the same cause of action the trial court took an approved course. Davis v. Rutland R. R. Co., 82 Vt. 24, 28, 71 Atl. 724; Lycoming Fire Ins. Co. v. Billings, 61 Vt. 310, 17 Atl. 715; Boyd v. Bartlett, 36 Vt. 9; Hill v. Smith, 34 Vt. 535, 541, 542.

[2] So the finding of the court that the amended declaration introduced no new cause of action is conclusive, unless on the face of the pleadings we must as matter of law hold otherwise than as the trial court found. Sometimes, of course, the pleadings themselves must govern. Brodek v. Hirschfield, 57 Vt. 12; Dewey v. Nicholas, 44 Vt. 24; Carpenter v. Gookin, 2 Vt. 495, 21 Am. Dec. 566.

The

[3] Here the amendment did not substitute a new party, for the plaintiff did not sue in his individual capacity, but in his representative capacity, the capacity in which he seeks to recover in the amended declaration. indebtedness in question is due from the defendant to the plaintiff in his representative capacity, and the conclusion of the original This was an action of declaration to the damage of the plaintiff general assumpsit which came into the coun- is sufficient. Pope, Adm'r, v. Stacy, 28 Vt. 96. ty court on appeal. The original declaration The original declaration and the amended set up the plaintiff as George Messenger "ad- declarations differ merely in their averments ministrator of all and singular the goods and as to how the indebtedness to the plaintiff chattels, rights and credits, which were of administrator arose. On all our authorities one F. E. Spear, deceased, at the time of no new cause of action was introduced by his death, who died intestate." The original the amended declaration, and the motion to declaration was in the common counts only dismiss it was properly overruled. McDonand the usual form was used without change, ald v. Webster's Estate, 71 Vt. 392, 45 Atl. so that the promises counted on were repre- 895; Lycoming Fire Ins. Co. v. Billings, 61 sented as made to the plaintiff, rather than Vt. 310, 17 Atl. 715; Myers v. Lyon, 51 Vt. to his intestate, in consideration of an in- 272; Carter v. Hosford, 48 Vt. 433; Hill v. debtedness of the defendants to the plaintiff, Smith, 34 Vt. 535; Boyd v. Bartlett, 36 Vt. rather than to his intestate. In the county 9; Allen v. Lyman, 27 Vt. 20; Flowers' Ex'r court on the entry of the appeal the plain- v. Kent, Brayt. 134.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes