ous innovation in a criminal case and could | bias, or prejudice or improper influence, and not be tolerated. In Dempsey v. People it to a verdict based on the sworn statements of was held to be error to allow a juror to talk witnesses presented in court where they may to a bystander inquiring as to the truth of a be tested by cross-examination. People v. statement made by a witness, and that the Gallo, supra; People v. Fishman, supra. To accused did not waive any rights by not ob- permit the jury to receive statements of the jecting to it. In Perteet v. People, however, accused or any witness out of court would the last case cited, the court says, and we be a most dangerous practice. We are of think that State v. Oakes cannot be constru- the opinion that the acts and statements of ed as going any farther: the accused in the presence of the jury, away from the presence of the court, under the circumstances of this case, created a manifest, urgent necessity that in order to prevent the defeat of justice warranted the court in withdrawing the case from the jury. The respondent willfully created these conditions. We do not think he can now complain. We therefore overrule the exceptions to the ruling of the court that these facts constituted no bar under his plea of former jeopardy to his trial at the September term, 1918. "A prisoner in a capital case is not to be presumed to waive any of his rights, but that he may, by express consent, admit them all away, can be neither doubted nor denied." In commenting on an earlier Illinois Case, People v. Scates, 3 Scam. 351, where the same language was used as in State v. Oakes, the court, in Perteet v. People, says: "He may * * plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen, that of a trial by jury. If he can expressly admit away the whole case, then it follows he may admit away part of it, but will not be presumed to have done so. The consent must be expressly shown, and this is the whole scope of the doctrine in the case referred to." [11] The above does not, of course, apply to the jurisdictional questions which cannot be waived. [12] Applying these principles to the facts shown of record in the case: Clearly we think, if the respondent had the right to be present at the view, he expressly waived it, and it was not a sufficient ground for withdrawing the case from the jury because it proceeded in his absence. He requested it, and his counsel without objection on his part directed that he be removed. We can conceive of situations where it might be almost inhuman to compel respondent against his will to visit the scene of the crime in the presence of the 12 men in whose hands his life rested. We could not have allowed him to take advantage of his absence caused at his own request if the trial had continued and a verdict of guilty had been rendered. a The exclamation by him in the presence of the jury, however, that if he was not removed he would go insane again was in the nature of evidence improperly presented to the jury out of court-an unsworn statement of the accused. We cannot say that it influenced the minds of the jury, but it may have. State v. Hascall, 6 N. H. 352; Driscoll v. Gatcomb, 112 Me. 289, 290, 92 Atl. 39, L. R. A. 1915B, 702. The court is not compelled to find as a fact that the improper proceedings actually influenced the minds of the jury. It is sufficient if it may have prejudiced them either for or against the accused. The state as well as the respondent is entitled to a trial by a jury free from all Entry must be: PAGE v. CAVE et al. (No. 133.) (Supreme Court of Vermont. Washington. April 19, 1919.) 1. FRAUDS, STATUTE OF 148(2) — AGREEMENTS-PRESUMPTION. It will be presumed that an agreement which would otherwise be invalid was in writing, until the contrary is made to appear. 2. FRAUDS, STATUTE OF 129(3)-TRANSFERS OF LAND-PART PERFORMANCE. Part performance of an oral contract respecting a transfer of land takes it out of the statute of frauds. 3. EQUITY 239-DEmurrer-ADMISSIONS. A demurrer admits the facts that are well pleaded. 4. EQUITY 219-LACHES-RAISING QUESTION BY DEMURRER. When one relies upon laches as distinguished from the statute of limitations to bar an action, he cannot protect himself by demurrer. 5. EQUITY 72(1)—LACHES-CONTINUED ASSERTION OF RIGHT. Where one entered into an oral contract re specting ownership of land and immediately took A son who contracted with his father to take care of the latter until his death in considera For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (106 A.) tion of all the property of the father, of which he took immediate possession, remaining in possession until and after his father's death, was entitled to equitable relief as against other heirs who asserted their right to share in the property. Exceptions from Washington County Court; Eleazer L. Waterman, Judge. Bill by Nat. D. Page against Thomas H. Cave, Jr., administrator of Nathaniel C. Page's Estate, Russell Brown, and others. Heard on demurrer of defendant Russell Brown, in vacation after March term, 1918, Demurrer overruled, bill taken as confessed to him, and decree entered against him in accordance with the prayer of the bill, and he appeals. Decree affirmed, and cause re manded. Argued before WATSON, C. J., HASELTON, POWERS, TAYLOR, MILES, JJ. Edward H. Deavitt, of Montpelier, for pellant Russell Brown. and H. William Scott and John W. Gordon, both of Barre, for appellee. the plaintiff moved onto and took possession of the farm and all of said Nathaniel's personal property; that ever afterwards he occupied, treated, and handled said property as his own, disposing of the personal property as his business and necessities required, with the full knowledge and consent of the said Nathaniel during his lifetime; that he has faithfully carried out all the terms of said agreement by him to be performed; that at the time he took possession of said farm it was in a run-down condition; that he immediately began improvements in the cultivation of the farm and repaired the buildings and fences at large expense, greatly enhancing the value of the property; that none of the heirs of the said Nathaniel, nor any other person, ever made claim to any interest in said property until about 1913, when for the first time the defendant Lois Brown and claimed an interest therein and, without the plaintiff's knowledge, had the defendant Cave appointed administrator of the said Nathanap-iel's estate; that said Cave as said administrator is attempting to get possession of said farm and property and threatens to sell the same in defiance of the plaintiff's rights; that commissioners on said estate have been appointed, but that no claims have yet been allowed by them; that he is ready and wiliing to pay any claims that may be allowed against said estate; that both the plaintiff and the said Nathaniel understood, and acted upon the understanding that if the plaintiff carried out the agreement the title to said property would vest in him without a conveyance by deed; that all the heirs of the said Nathaniel except the defendants Brown have executed conveyances of their interests in the property to the plaintiff, and that they should be compelled to do the same. The prayer of the bill was for a temporary in junction restraining the defendants from interfering with the plaintiff's possession of the premises, which was granted, and for a decree confirming the plaintiff's title to the property and compelling the defendants to make such conveyances as are necessary to remove the cloud from his title. The grounds of the demurrer are (1) the statute of frauds, (2) laches, (3) that plaintiff is not entitled to the relief prayed for, and (4) want of equity in the bill. TAYLOR, J. The plaintiff is a son of Nathaniel C. Page, late of Plainfield, Vt., deceased, and the defendants are the latter's administrator, Lois (Page) Brown, a granddaughter of the intestate, and Russell Brown, husband of the said Lois. This cause was argued at the January term, 1917, on a premature appeal, which was dismissed. See 91 Vt. 188, 99 Atl. 780. It was later heard in the court of chancery on the demurrer of Russell Brown to the bill of complaint. The demurrer was overruled, the bill taken as confessed as to him, and a decree entered against him in accordance with the prayer of the bill. From this decree the said Brown comes here on appeal. The bill alleges in substance that the said Nathaniel C. Page died March 18, 1895, leaving, among other heirs, the plaintiff and the defendant Lois Brown; that prior to May 25, 1892, the said Nathaniel was living on a farm owned by him in Plainfield, and, being in feeble health, had been cared for by an unmarried daughter; that said daughter became desirous of being married and terminating the care of her father; that on said last-named date the plaintiff and the said Nathaniel entered into an agreement by the terms of which the plaintiff was to care for and support his father during his lifetime, give him a suitable burial, and pay all of his just debts and funeral expenses; that in consideration thereof the said Nathaniel agreed to transfer all his property, real and personal, to the plaintiff, and, in case the plaintiff should carry out his part of the agreement, he was to have all of said property; that pursuant to said agreement [1-3] The objection that the agreement relied upon is within the statute of frauds, and so not enforceable, is not well taken. The court of chancery was justified in overruling the demurrer, so far as this objection is concerned, on the ground that it does not appear whether the agreement was in writing or not, since it will be presumed that it was in writing until the contrary is made to appear. Cooley v. Hatch, 91 Vt. 128, 131, 99 Atl. 784. But treating the agreement as resting in parol, as counsel have done, the same result is reached. Defendants' counsel rec ognizes the force of our decisions to the effect that part performance of an oral contract respecting land takes it out of the statute. Smith v. Pierce, 65 Vt. 200, 25 Atl. 1092; Kittredge v. Kittredge, 79 Vt. 337, 65 Atl. 89; Gove v. Gove's Adm'r, 88 Vt. 115, 92 Atl. 10; Cooley v. Hatch, 91 Vt. at page 133, 99 Atl. at page 784. Admitting that such would be the effect between the deceased and a stranger, he argues that the rule does not apply where services are performed by a child for a parent, since it is presumed that they are performed on account of the relation and not for compensation. But the demurrer admits the facts that are well pleaded, and the presumption has no force in the face of the facts alleged in this bill. On the case made by the bill and demurrer, an express contract to pay for the services is established. See Sawyer v. Hebard's Estate, 58 Vt. 375, 3 Atl. 529. v. Hill, 263 Ill. 211, 105 N. E. 16; Low v. Low, 173 Mass. 580, 54 N. E. 257; White v. Patterson, 139 Pa. St. 429, 21 Atl. 360; D'Ellissa v. D'Amato, 85 N. J. Eq. 466, 97 Atl. 41, aflirmed in 86 N. J. Eq. 244, 98 Atl. 1085. [6] The remaining grounds of demurrer are to the same point, viz. that the facts alleged do not make a case for equitable relief. It is urged in support of this claim that failure to acquire legal title to the premises through ignorance of the law does not furnish a basis of equitable jurisdiction, and Deavitt v. Ring, 76 Vt. 216, 56 Atl. 978, is cited to this proposition. It is enough to say that the allegation of a mutual misunderstanding as to the necessity of a conveyance by deed to vest the legal title in the plaintiff is not the basis of the relief sought, but rather a circumstance explaining why the deed was not executed in the lifetime of the [4] Nor can the demurrer be sustained on said Nathaniel. It is further urged that the ground of laches. It is too well settled the Browns are as much entitled to their here to admit of question that when one re- share of the estate as the plaintiff is entitled lies upon laches, as distinguished from the to his share as an heir. This claim disrestatute of limitations, to bar an action he gards the plaintiff's equitable rights under cannot protect himself by demurrer, but must the contract. Mrs. Brown never had any plead or answer the facts. Drake v. Wild, vested interest in the estate of her ancestor. 65 Vt. 611, 617, 27 Atl. 427; Gleason v. Car- The property was his to dispose of as he penter, 74 Vt. 399, 403, 52 Atl. 966; Wilder's saw fit in his lifetime. The agreement by Ex'r v. Wilder, 82 Vt. 123, 129, 72 Atl. 203. which he attempted to dispose of it was upon [5] Besides, the facts do not present a sufficient consideration, was in all respects case on which laches will be imputed to the fair and aboveboard, and was fully performplaintiff as matter of law. In the circum-ed by the plaintiff. The rights of the credstances there was no unreasonable delay on itors are not involved. There are present his part. He continued in peaceable posses- no unusual conditions involving the exercise sion of the property and enjoyed his rights of discretion. The claim of the Browns, if in the premises unquestioned until a short maintained, would work a fraud upon the time before the action was commenced. The plaintiff. In short, the facts make an unpossession afforded notice to all of his equi-mistakable case for equitable relief such as table rights and was a continued assertion is prayed for. See Gove v. Gove's Adm'r, thereof. In such circumstances, mere lapse of time will not defeat the remedy. Van Dyke v. Cole, 81 Vt. 379, 397, 70 Atl. 593, 1103; Gove v. Gove's Adm'r, supra; Snell supra; Fowler v. Sands, 73 Vt. 236, 50 Atl. 1067; Kittredge v. Kittredge, supra. Decree affirmed, and cause remanded. Let a new time be fixed. (106 A.) OBEN v. DUCHARME. (No. 137.) plaintiff, prior to the receipt of notice by the latter from the former, of the withdrawal of the property, or within six months there (Supreme Court of Vermont. Orleans. May 6, after, to pay the plaintiff 3 per cent. of the 1919.) -CON 1. BROKERS 49(1) COMPENSATION amount of the sale, with a further provision in that connection not material here. On November 10, 1916, the plaintiff having failed to find a customer for the property, the same was withdrawn from his agency by the defendant, and the contract revoked under and in accordance with provisions therein for such purpose. In March, 1917, the defendant requested the plaintiff to renew his efforts to sell the farm. Suggestion being made by the plain49(2)-PERFORMANCE OF SERV- tiff that there should be a new contract, the or bargained for by either party." 2. BROKERS defendant refused to sign a new contract, and refused to let the plaintiff have the exclusive sale, but told him, in substance, that if he would sell the farm for the price and upon the terms named in the former written contract the defendant would pay him his commission of 3 per cent. This proposal was accepted by the plaintiff, and constituted the contract under which he thereafter operated. In the summer of 1917 the plaintiff took a Mr. Fountaine, who was then a resident of Derry, N. H., to see defendant's farm, and told defendant that he had brought a party who wanted to buy a farm. Defendant answered that if the party would pay him his price he would sell. Plaintiff later, but same day, told defendant that Fountaine had a 4. BROKERS 57(2)—COMMISSION-SALE BY couple of houses and a grocery store which OWNER. Where defendant owner declined to accept counter offer of prospective customer who was procured by plaintiff, but who was not ready, able, and willing to purchase on the terms which plaintiff was authorized to sell, and defendant thereafter closed a deal with such customer upon terms not mentioned when the customer was introduced, and in which plaintiff had no part, held plaintiff was not entitled to the commission. he wanted to trade for a farm, but nothing was said about his having a stock of groceries that was likely to enter into the trade. Defendant answered, in substance, that his farm was not to be had in a trade at the price named, and that he did not want to trade his farm for other property. Defendant told Fountaine his price for the farm was $18,000, but would not take that price and exchange it for other property; and Exceptions from Orleans County Court; Fountaine told defendant what he asked for Leighton P. Slack, Judge. Action by C. J. Oben against Paul Ducharme. Judgment for defendant, and plaintiff excepts. Affirmed. In the fall of 1915 the defendant, desiring to sell his farm, situated in the town of Irasburg, on the 27th day of September placed the same in the hands of the plaintiff, a real estate broker at Newport, for that purpose, entering into a written contract which is made a part of the findings of fact. By that contract the plaintiff agreed to list and use his best endeavors to sell the property, it being placed exclusively in his hands for disposal at the price and upon the terms stated therein, and the defendant agreed, if the same is sold, exchanged, or bargained for, either by the defendant or his real estate. Nothing further was said about an exchange of properties at that time, and no terms of a trade or exchange were talked about. A short time thereafter defendant notified one of plaintiff's men that the plaintiff better find him another customer, as he was not going to trade with Fountaine, and in that connection said he did not want to bother with that other property. Fountaine was not then, nor was he ever, ready, willing, and able to accept the terms in the written contract between the plaintiff and the defendant. The defendant did not at that time contemplate trading with Fountaine, and did not say or do anything to lead either the plaintiff or Fountaine to think that he did. Later, about the middle of August, the plaintiff found another customer, to whom defendant sold his farm for $16,750, provid For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed the customer could come out of Canada; | words, used as they are in connection with but this trade was never consummated be- the price specified, have reference to the paycause the Canadian immigrant officials would ment of such purchase price. not allow him to cross the border. On the inside of the paper containing the written contract is a "description of the property listed for sale and referred to in attached contract." The last paragraph is: "Price: ......; lowest price of real estate including personal property, $18,000; terms, amount down $3,000. How much per year $500 Some time after the trade last named fell through, defendant had occasion to go to Concord and Manchester, N. H., and on that occasion went to Derry, which is about 12 miles from Manchester, saw Fountaine, and made a slight examination of his property. Later, Fountaine went to Irasburg and look- | and Int. at 6%, will take some good security." ed over defendant's farm. Still later, defendant again went to Derry and made a more thorough examination of the Fountaine property. On September 8, 1917, Fountaine went to Irasburg, the terms for the exchange of properties were finally agreed upon between him and defendant, and the trade was consummated. In this trade defendant's farm was valued at $18,750. In exchange he got the Fountaine real estate valued at $7,500, a stock of groceries valued at $1,300, Fountaine assumed an outstanding mortgage of $6,000 on defendant's farm, and paid the balance in cash. The plaintiff had no part in making or arranging the terms of this exchange; in fact he had no knowledge of the negotiations until after the trade was closed. He telephoned to the defendant once after he was at de fendant's farm with Fountaine, and before the negotiations were had with the customer from Canada, and asked defendant if he was going to look over the Fountaine property, in answer to which he was told by defendant that he was not. About a week after plaintiff and Fountaine were at defendant's farm, plaintiff wrote Fountaine that he and the defendant were coming down to see his property; but the court states that they do not find that defendant at that time had given the plaintiff any information to that effect. The findings state that this is all the plaintiff ever did in the way of effecting an exchange of defendant's property. A printed blank was used. The dollar mark, the figures, and all here quoted after figures showing the sum to be paid per year, ink. In the heading of the contract is shown are written in the blank spaces, with pen and the number of acres in the farm to be sold, and the price. The first paragraph states that the above and within described property is placed exclusively in the hands of the plaintiff "for disposal at the price and upon the terms herein stated, also at any price and upon any terms hereafter agreed to by me (defendant) in writing." It will be noticed that the property was not thereby placed in the plaintiff's hands "upon the terms" stated; but it was placed in his hands "for disposal * * * upon the terms" stated. No one would contend that the words "at the price" have reference to anything other than the sum for which the farm was to be sold; and yet, coupled with those words and co-ordinated with them in the same expression, are the words "and upon the terms," showing that they are used in the same sense, that is, have reference to the sale to be made. "The coupling of words together," says Mr. Broom, "shows that they are to be understood in the same sense." Broom's Leg. Max. 588. This interpretation is shown to be correct by the phrase immediately following as a part of the same sentence: "Also at any price and upon any terms hereafter agreed to by me (defendant) in writing." For otherwise this phrase has the effect of giving the defendant the sole power of changing the provisions of the written contract, touching a matter in which the plaintiff, as well as defendant, was interestWilliam W. Reirden, of Barton, and Wal-ed, and to change which required the agreeter H. Cleary, of Newport, for plaintiff. Frank D. Thompson, of Barton, for defendant. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and FISH, JJ. WATSON, C. J. (after stating the facts as above). [1] Counsel disagree as to what the parol agreement found and stated by the trial court in fact was: On the part of the plaintiff it is said that of the words "for the price and upon the terms named in the former written contract," the words "upon the terms" have reference to the commission which was to be paid if the property "is sold, exchanged or bargained for either" by the plaintiff or by defendant; while on the part of defendant it is urged that those ment of both. In the written acceptance of defendant's proposition by the plaintiff (which is below defendant's signature), the plaintiff engages "to use our best endeavors to sell or exchange said property in accordance with the terms above stated." The word "terms" is not used in any other place, either in connection with the description of the property, or in the contract at tached thereto. When it is observed that in every instance this word plainly has reference to the sale of the property, and not to the commission, there should seem to be no uncertainty regarding its intended meaning as used in the subsequent parol agreement |