Opinion
Opinion filed January 8, 1932.
Concession of Counsel in Trial as Judicial Admission.
In action of contract to recover on promissory notes, concession of counsel that plaintiff was entitled to judgment on notes covered by specification, except to extent allowed under claims in offset and recoupment, held to be judicial admission and binding waiver of all issues except amount of offset and recoupment.
ACTION OF CONTRACT to recover on promissory notes. Answer in offset and recoupment. Trial by court at the September Term, 1930, Rutland County, Buttles, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.
James A. Merrill and Jones Jones for the defendant.
Fenton, Wing, Morse Jeffords for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
There is nothing in this record to review. After the time for filing an answer had expired, the defendant had leave to file an answer in offset and recoupment. His counsel expressly admitted that the plaintiff was entitled to a judgment on the notes covered by the specification, except to the extent allowed under these claims. This was a concession, a judicial admission, and a binding waiver of all issues except the amount of the offset and recoupment. Hall v. Fletcher, 100 Vt. 210, 212, 136 A. 388, and cases cited. This concession bound the defendant throughout the trial; for, when his counsel attempted to interpose the defense that some of the notes were not due, his attention was called to the concession made by former counsel, and the court held him to it.
The issues raised by the answer were tried out, and the judgment gave the defendant the benefit of the allowances made by the jury. All of the exceptions referred to in the defendant's brief were predicated upon the immaturity of some of the notes. But on that subject, the defendant had been conceded out of court.
Judgment affirmed.