debt and costs then accrued, and such tender is refused, the creditor shall not recover the costs made after such tender in procuring judgment for his debt. It is argued that, "if the consent of the plaintiff is necessary before a judgment can be confessed, it would be impossible to procure a confession of judgment to tender." But what is here spoken of is not the tender of a judgment in being, or of anything having the force of a judgment, but an offer to give judgment, which may be refused, and which, if refused, leaves the judgment still to be obtained. The provisions of V. S. 1048 and 1690 were originally embodied in one section, and remained so until the Revision of 1839, when they were given their present form. There was no provision in the earlier statute that made the rendition of the judgment depend on the filing of a specification. What is called in the original act a confession of debt is there given the force of a judgment, for it is provided that on making a record thereof execution shall issue. The statute now provides in terms for the rendition of a judgment on confession. The first part of the original section authorized judgments on confession, and directed the course to be taken when the confession of indebtedness was agreed to; and the last part prescribed the effect to be given to a tender of such a confession if it was refused. We find nothing in the statute as originally framed, or as it now stands, to indicate the legislative intent contended for by the defendants.

This disposes of the only ground on which the right to the writ is questioned.

Demurrer overruled, petition adjudged sufficient, and case held for further proceedings.

2. EVIDENCE PAROL EVIDENCE-VARYING TERMS OF POLICY.

In an action on an accident policy, insuring one as "contractor, office and travelling," evidence that the general agent of the insurer, who took the application, knew that insured was a railroad contractor, engaged in building railroads, was admissible to aid in determining the meaning of the quoted words, and was not objectionable as varying the terms of the policy.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, § 1818.]

3. CONTRACTS-CONSTRUCTION.

In the construction of contracts, the circumstances in which the parties contract may be looked at, and their common knowledge may be such a circumstance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 752.]

EVIDENCE.

Where, in an action on an accident policy, insuring decedent as "contractor, office and travelling," it appeared in the light of the knowledge imputed to the insurer that decedent was insured as a contractor and builder, not doing the actual work of building, but engaged in his office, and in traveling incident to his occupation, the exclusion of a fragment of the application for the policy offered to show that decedent's statement of his occupation was "contractor, not working," and that his duties were office work and traveling, was not prejudicial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4194-4199.] 6. INSURANCE ACCIDENT INSURANCE-ACTIONS-CAUSE OF DEATH-EVIDENCE.

In an action on an accident policy insuring one as "contractor, office and travelling," evidence examined, and held to authorize a finding that insured met his death by falling from an observation car. and not while riding in a locomotive or walking on the roadbed of a steam railway, within an exemption in the policy. 7. SAME-ACCIDENT POLICY-CONSTRUCTION.

Where riding on a locomotive was a mode of travel covered by an accident policy insuring one as "contractor, office and travelling," a provision that the policy did not cover death while riding on a locomotive was an inconsistency, and did not preclude a recovery, though insured at the time he was killed was riding on a locomotive.

8. SAME-ACTIONS-EVIDENCE-QUESTION FOR JURY.

Where, in an action on an accident policy, insuring one as "contractor, office and travelling," the evidence showed that insured was killed by falling from an observation car while traveling as contractor, a verdict could not be directed for insurer on a ground which assumed that decedent was killed while walking on a railroad roadbed, within an exemption in the policy.

9. SAME.

Where, in an action on an accident policy, there was evidence that insured was killed while in the occupation in which he was insured, a verdict in favor of insurer could not be directed on the ground that insured was killed in an occupation more hazardous than that in which he was insured.

10. TRIAL-INSTRUCTIONS FACT.

· ASSUMPTION

OF

In an action on an accident policy insuring one as "contractor, office and travelling," and exempting the insurer from liability for death while riding on any locomotive, or while walking on the roadbed of any steam railway, an instruction that if insured was killed while traveling as a contractor engaged in railroad "work," using the ordinary means of travel in that occupation, the insurer was liable on the policy, as it insured him while he was traveling in the usual way of a contractor engaged in railroad "work," was not erroneous as assuming that he was insured as a working contractor; the word "work" in the instruction only meaning "occupation."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 420-435.] 11. APPEAL AVAILABILITY.

- INSTRUCTIONS

EXCEPTIONS

In an action on an accident policy insuring one as "contractor, office and travelling,"

and stipulating that insurer should not be liable for the death of insured while riding on any locomotive and while walking on any roadbed of any steam railway, the court charged that, if insured was killed while traveling as a contractor, using the ordinary means of travel, the insurer was liable. The company excepted generally to the charge. Thereafter the court recalled the jury and added "provided * * that he was * * in pursuit of that occupation." The insurer took no exception to the charge as modified. Held, that the exception taken availed nothing.

*

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1519.]

12. SAME SETTING ASIDE VERDICT-DISCRETION OF TRIAL COURT-REVIEW.

A motion to set aside a verdict as against the weight of the evidence is addressed to the discretion of the trial court, and unless such discretion is abused no exception lies to its action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $§ 3860-3865.]

Exception from Washington County Court; Wendall P. Stafford, Judge.

Assumpsit on accident insurance policy by John Trow, administrator of Joseph H. Ward, against the Preferred Accident Insurance Company. There was a judgment for plaintiff, and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

John W. Gordon and S. Hollister Jackson, for plaintiff. Zed S. Stanton and Geo. W. Wing, for defendant.

HASELTON, J. This was an action of assumpsit on an accident insurance policy. The declaration set out the policy with the conditions on the back thereof. The defendant pleaded the general issue and four special pleas, to which the plaintiff replied. Trial by jury was had. A verdict for the plaintiff was returned, and judgment was rendered thereon.

The insurance company by a policy, which the plaintiff made an exhibit, insured the plaintiff's intestate as "contractor, office and travelling," according to the written words of the policy. One S. S. Ballard, the general agent of the company for the county of Washington, took the application of Ward and forwarded it to the company, and the insurance was effected through said Ballard. Mr. Ballard was called as a witness by the plaintiff, and, after he had testified as to the character and extent of his agency, he was permitted to testify, in substance, that in taking the application and effecting the insurance he knew Ward to be, and for a long time to have been, a railroad contractor engaged in building railroads and railroad bridges and abutments as well as a contractor in respect to other matters. This evidence as to the knowledge of the agent was, under the final ruling of the court in reference thereto, used, under objection and exception by the company, as tending to show the application of the words of the policy designating Ward's occupation. The evidence of the agent's

knowledge of Ward's previous occupation bore, of course, only upon his knowledge of Ward's occupation at the time. The final ruling of the court was correct. Ballard's knowledge in the insurance transaction is taken to have been the knowledge of the company; he being its general agent throughout the district within which the insurance was effected (Carrigan v. Insurance Co., 53 Vt. 418, 38 Am. Rep. 687; Fraser v. Insurance Co., 71 Vt. 482, 45 Atl. 1046), and the company's knowledge that Ward was a railroad contractor acting in that occupation tended to show the sense in which the brief and elliptical phrase "contractor, office and travelling" was used in the policy issued by the company. The company's knowledge was one of the circumstances material to an interpretation and construction of the words that it used. Oral evidence with reference thereto did not vary the terms of the written contract and violated no rules of evidence. In the construction of contracts, the circumstances in which the parties contract may be looked at, and their common knowledge and understanding is sometimes, and is here, such a circumstance. Rioux v. Ryegate Brick Co., 72 Vt. 148, 47 Atl. 406; Granite Works v. Bailey, 69 Vt. 257, 37 Atl. 1043; McGowan v. Griffin, 69 Vt. 168, 37 Atl. 298; Hart v. Hammett, 18 Vt. 127.

The agent Ballard was called as a witness by the plaintiff. On his cross-examination he was shown what the examining counsel denominated, and what in fact was, "a remnant of a paper," and the evidence of the witness tended to show that it was a part of the application for the insurance in question. The remnant had a burnt appearance. Before the close of the case, during an argument on a motion for a verdict in favor of the defendant, made at the close of the plaintiff's evidence, this piece of paper was by the defendant offered in evidence in connection with Ballard's testimony, and was excluded; the court ruling that in the form in which it was it was inadmissible without further evidence. This ruling was correct. Both the written and the printed matter on this paper were incomplete, and there was no evidence tending to explain its burnt and fragmentary condition as it came from the defendant's possession. The fragment showed the following words and parts of words "Contractor, not working, buil" and "office work & travell." The claim of the company was that, if this paper had been received, "buil" would have signified "building," and "travell" would have denoted "travelling," and that the applicant's written statement of his occupation would have been shown to be contractor, not working, building, and that his duties in that occupation were "office work and travelling." If we assume this to be so, the defendant would have gained nothing by the admission of the fragmentary application. The application and policy, construed in the light of the knowledge imputed to the company,

would have shown that the company insured Ward as a contractor and builder not doing the actual work of building, but engaged in his office and in traveling about the duties of such a contractor and builder. With or without the restored application in the case, the "travelling" referred to as one of the duties of Ward's occupation was travel by the modes and conveyances ordinarily in cident to the occupation of a contractor and builder not himself participating in the actual work of building or construction.

The policy by its terms did not cover injury or death "while or in consequence of riding in or on any locomotive," or with an exception immaterial here, "while walking or being on the roadbed of any steam railway." The policy further provided that, if the insured should be injured fatally or otherwise in any occupation or exposure more hazardous than that stated in the policy, the company should be liable only for the amount fixed for such increased hazard in accordance with the company's classification of risks. The declara

tion alleged, among other things, that Ward was killed solely by accidental means, by falling from an observation car. At the close of the evidence, the defendant moved to have a verdict directed in its favor because the plaintiff had failed to make out a case under the allegation just referred to, and, in substance, because of the foregoing provisions of the policy when applied to the evidence. The claim that the plaintiff had failed to make out a case under his allegation is treated as equivalent to a claim that there was no evidence on which the plaintiff could go to the jury in support of the allegation. The motion was overruled, and the defendant excepted.

The evidence tended to show that on the day of his death Ward was riding over the Rutland railroad, in the Nehasane, an observation car as it may be called, though witnesses differed as to its proper designation. An examination of the whole testimony discloses that there was evidence fairly tending to show that at the precise time in question Ward was traveling in said conveyance in pursuance of the occupation in which he was insured, and by the method of travel usual in that occupation and incident thereto. No one, so far as the evidence disclosed, saw Ward fall, or saw him run over; but evidence tending to show the manner of his death is correctly summarized in the bill of exceptions, and the summary there given cannot well be abbreviated. We accordingly quote therefrom the following statement of the tendency of evidence on the part of the plaintiff: "That the observation car stopped for the purpose of permitting inspection of bridge No. 78 on said railroad, about six or eight feet before the bridge was reached from the front of said car, which was traveling in an easterly direction. That there were riding with Mr. Ward in said car the bridge con

structor, Badger, and the superintendent of the road, Parker. That Parker and Badger left the car to go under the bridge, and when Mr. Ward was last seen alive he was sitting in the observation car. That there were on the car a regular crew, in addition to the persons mentioned, consisting of conductor, brakeman, fireman, and engineer, and said car and engine constituted a train for the conveyance of people engaged as contractors and as officials of the road. That the said Badger and Parker proceeded under the bridge, and that Badger came out from under the bridge and motioned to the fireman to run the engine across the bridge, in order that observation might be made as to the effect on the bridge of the passage of the car over it. That before this signal to go forward was given, the engineer went on the ground to the front part of his engine to oil the same, and Mr. Ward was not anywhere in front of the car. That upon the word from the fireman as communicated from Mr. Badger, the engineer took his place and looked carefully ahead of the car, and could see the track clear ahead of it and over said bridge, and Mr. Ward was not on the said bridge at the time. That said bridge was about 70 feet span. That the fireman rang the bell 15 or 20 seconds before starting the engine. That the conductor, who, at the time of the stopping of the car, had gone forward of it about 500 or 600 yards, looked around as the bell rang, and saw the car, and no one on the bridge or in front of it. and saw nothing of Mr. Ward. That the engine made a loud puffing noise when starting that could be heard a distance of two miles or more. That the car was so constructed that Mr. Ward could have remained in the interior of it and not be seen by the engineer or any of the other persons present, at the time the car was started across the bridge, or while it was running across the bridge. That Mr. Ward could have stepped to the front of the car at the time the signal for starting was given, for the purpose of observing the bridge, and, as a matter of inference, that he accidentally fell from the car in front of it. That he was run over, and his head severed from his body. That after the car ran over the bridge Mr. Ward's body was found a little past the center of the bridge from the point where the car started, and about 40 feet in front of where the car was standing at the time that it started. That after the car had started Mr. Badger and Mr. Parker saw his hat fall through the bridge, and his head followed and fell into the stream. That the hat struck the water before the head did, and was not on the head, but fell by itself. That just before the hat fell Mr. Badger and Mr. Parker heard Mr. Ward make an outcry of fear 'Hold on there!' which were the only words or outcry heard. That Mr. Ward's body was found lying across the track, between and parallel with the ties;

his head having been cut off on one rail and his left foot partially run over on the opposite rail. That neither the track, the conditions of the body or his clothing, or the car, indicated his having been pushed or dragged along the bridge at all. The dust from the ties was not disturbed, back of where his body was found, and no clothing was disarranged except the shoe and neckwear where his head was cut off. That there were marks on his head that might indicate that he fell so that his head struck upon the track in a way to render him insensible at once."

There was, as must be seen, nothing certain as to the manner of Ward's death, but it must also be seen that there was circumstantial evidence from which a jury might reasonably infer that he met his death in the way alleged in the declaration. This being so, the question was for the jury, although there was ground for an opposing inference. Scofield's Adm'r v. Insurance Co., 79 Vt. 161, 64 Atl. 1107; Tracy v. Railroad Co., 76 Vt. 313, 57 Atl. 104; Clark v. Assurance Co., 72 Vt. 458, 48 Atl. 639; Lazelle v. Newfane, 69 Vt. 306, 37 Atl. 1045. It is contended that the observation car referred to was a locomotive, and that therefore the motion for a verdict should have been granted, even if, as the court holds, there was evidence tending to show that Ward met his death in the way alleged, because the policy provided that there could be no recovery for injury or death "while or in consequence of riding in or on a locomotive." The conveyance in which Ward rode was described by various witnesses, and a photograph of it was received in evidence and made a part of the exceptions. It appears that it consisted of a locomotive with a cab built over it, and on the whole we consider that in riding in this cab Ward was riding in or on a locomotive. But if, as there was evidence fairly tending t show, riding on such an observation car or locomotive as the "Nehasane" was a mode of travel covered by the insurance of Ward in traveling in his occupation as stated in writing, then the printed exception which is now under consideration was an inconsistency and would not operate to defeat recovery. This was the view taken by the trial court, and is sustained by reason and authority. Mascott v. Insurance Co., 69 Vt. 116, 37 Atl. 255; Carlin v. Insurance Co., 57 Md. 515, 40 Am. Rep. 440; Hall v. Insurance Co., 58 N. Y. 292, 17 Am. Rep. 255; Collins v. Insurance, etc., Co., 79 N. C. 279, 28 Am. Rep. 322; Whitmarsh v. Insurance Co., 16 Gray (Mass.) 359, 77 Am. Dec. 414; Maril v. Insurance Co., 95 Ga. 604, 23 S. E. 463, 30 L. R. A. 835, 51 Am. St. Rep. 102; Wheeler v. Insurance Co., 62 N. H. 450, 13 Am. St. Rep. 582. If the occasion or cause of Ward's death was his walking or being on the roadbed of the railway, the plaintiff could not recover, since, if for no other reason, the declaration alleged a different occasion or cause of death. But as

there was evidence fairly tending to show that the occasion or cause of death was as alleged in the declaration, and not walking or being on the roadbed, a verdict could not be directed on a ground which assumed that the accident was not caused as alleged in the declaration. Bass v. Rublee, 76 Vt. 395, 57 Atl. 965. Again, a verdict could not be directed for the defendant on the ground that Ward was killed in an occupation or exposure more hazardous than that in which he was insured, for, to reiterate in substance what has been said, there was evidence fairly tending to show that he was killed while in the occupation in which he was insured. All the grounds of the defendant's motion for a verdict have been stated and given consideration, and the result of such a consideration is a holding that the motion was rightly overruled.

Among other things, the court charged the jury as follows: "But the policy insured Mr. Ward as a contractor and builder, in the office and traveling, and it is claimed on the part of the plaintiff that he was traveling at the time he was injured, traveling as a contractor and builder engaged in railroad work, and that he was using a usual and ordinary means of travel in that occupation. Now, if that is so, the exception I have spoken of would not save the company, because if they having insured him as a contractor and builder, knowing through their agent that he was engaged, and had been for years, as a contractor and builder in railroad work as well as other work, and insured him while he was in his office and traveling, it is to be taken that that was insuring him while he was traveling in the usual and ordinary way of a contractor and builder engaged in railroad work. So that is a question of fact for you to consider: Was he at the time this accident occurred traveling as a contractor and builder engaged in railroad work in the usual and ordinary way of travel for one in that occupation, or in a usual and ordinary way? If you find that to be so by a fair balance of testimony, then the plaintiff is entitled to recover, notwithstanding this provision that relieves the company from liability where the accident occurs in consequence of the assured riding on a locomotive." The defendant excepted as follows: "We are desiring exception as to what the court said, ‘if he was insured (I haven't the language), if he was insured as a contractor and builder, and was traveling as a contractor and builder, it would not save the company.' It was the expression you used last, that portion of the charge you have referred to." The defendant treats this general exception as applying to all that was said in the passage quoted, and insists that it assumes that the defendant insured Ward as a working contractor. But in speaking of Ward's "work" the court very clearly meant nothing more than his "occupation." This portion of the charge is also criticised on the ground that

It left the case for the jury on certain claims of the plaintiff. But a reading of the whole charge shows that the case was submitted with entire fairness. In one respect there was a possible shortage in the instruction quoted, and this the court supplied by recalling the jury, referring to the passage quoted, and saying to the jurymen: "I should have added to that: 'And provided also that he was at that time in the pursuit of that occupation, engaged in that occupation.' If he was out on a pleasure trip, of course, what I have said would not be true. It occurred to me after you retired that I had not included that, so upon that branch of the case it will be necessary for you to find that he was at the time the accident occurred engaged in the occupation in which he was insured as a contractor and builder and traveling on that business." After the charge was so modified, the defendant took no exception. The exception to the charge avails nothing.

This policy was called an $11,000 combination policy. According to its provisions, if the death of Ward was accidental, and had occurred while he was riding as a passenger in a car provided for passengers carried for compensation, the company would have been obliged to pay the plaintiff the sum of $11,000; but the plaintiff's claim being, and his evidence having a tendency to show, that Ward's death was the sole result of accidental means while he was in the pursuance of the occupation in which he was insured, but not while he was being carried as a passenger for compensation in a regular passenger car provided for that purpose, the defendant, if found liable, was under obligation to pay, not $11,000, but $5,000. Accordingly, the declaration here went for the smaller sum, and the verdict was therefor; the matter of interest being taken into account. After verdict and before judgment, the defendant moved the court to set aside the verdict. This motion was overruled, and the defendant excepted. The grounds of the motion were that there was no evidence tending to support the declaration, and that the verdict was against the weight of evidence. The first ground raised a question of law which has already been considered and disposed of. On the second ground, namely, that the verdict was against the weight of evidence, the motion was addressed to the discretion of the trial court, and, there being nothing to show that such discretion was not properly exercised, no exception lies to the action of the court. Marcy v. Parker, 78 Vt. 73, 62 Atl. 19; Coolidge v. Ayers, 77 Vt. 448, 61 Atl. 40; Jangraw v. Mee, 75 Vt. 211, 54 Atl. 189, 98 Am. St. Rep. 816; German v. Railroad Co., 71 Vt. 70, 42 Atl. 972; State v. Peach, 70 Vt. 283, 40 Atl. 732; Sowles v. Carr, 69 Vt. 414, 38 Atl. 77; Lindsay v. Railroad Co., 68 Vt. 556, 35 Atl. 513; Stearn v. Clifford, 62 Vt. 92, 18 Atl. 1045; Newton v. Brown, 49 Vt. 16.

No question was raised as to the due execution of the policy, its issue, its renewal

from time to time, the payment of premiums, the fact that Ward's death resulted from violent and external means, or as to the proof of death. All the questions fairly raised by the exceptions, and relied on, have been considered.

Judgment affirmed.

(80 Vt. 335)

DROUIN v. WILSON. (Supreme Court of Vermont. Caledonia. Oct. 5, 1907.)

1. CONTRACTS-BURDEN OF PROOF-PLEA OF PERFORMANCE.

All matters well alleged being admitted under a plea of performance, defendant thereby assumes the burden of proof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1754-1780.]

2. LANDLORD and TENANT-BREACH OF COVENANT-PLEA.

To the declaration for breach of the covenant of a lease to surrender the premises in as good condition as when taken, ordinary wear and damage by fire or providential causes alone excepted, alleging that defendant did not surrender in good condition, but with a window broken, and that it was not injured by ordinary wear or fire or providential causes, defendant answered, admitting the leaving of the broken window, but pleading that this did not constitute a breach, but was within the exception, having been caused by the settlement of the building due to the action of the frost and heat. Held, that this was a plea of non infregit conventionem, which though not proper, it pleading a negative to a negative, was good in the absence of a demurrer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 616, 617.] 3. SAME-BURDEN OF PROOF.

The burden of proof in an action for breach of covenant to leave the premises in as good condition as when taken is on plaintiff; the plea being in effect a traverse of the allegation of the declaration that the breaking of a window was not due to any of the excepted causes. 4. SAME-COVENANTS-ORDINARY WEAR.

The breaking of a window due to a defect in the construction of the building is a part of the ordinary wear within the exception to a covenant in a lease to leave the premises in as good condition as when taken, ordinary wear excepted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 616, 617.] 5. APPEAL-SUFFICIENCY OF EXCEPTIONS.

The exception is too general to require consideration where one submitted several requests to charge, and excepted to the failure to comply with the requests that were not complied with, without desiguating any that he claimed were not complied with.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1620-1645.] 6. WITNESSES AS WITNESS.

CROSS-EXAMINATION-PARTY

Where plaintiff in an action for breach of Covenant in a lease to leave the premises in as good condition as when taken, ordinary wear excepted, a window having been left broken, testified on his direct that defendant never said any. thing about paying for the window, and that the building had not heaved or settled, it was permissible on cross-examination to ask him as to an offer made by defendant conditioned on plaintiff repairing the window at once, and as to an inability to bring the top of a door of the building within the casing, and defendant's repairs in that respect.