Three years passed between his election
and Redfield’s first dissents, but then he
filed four of them. In Fenton v. Clark (1839),
Judge Bennett wrote the majority decision,
agreeing that a man who could not fulfill
the full term of his employment contract
on account of illness was entitled to partial recovery of his compensation, based on
quantum meruit. The issue had never been
decided in Vermont, but Bennett found
support in decisions from New Hampshire
and the English courts. To deny recovery,
he wrote, would operate as a forfeiture or
penalty for the employee and an unearned
benefit to the employer. The contract need
not be fully performed to allow recovery.
Part performance justified a proportionate
compensation, particularly when the worker was a laborer, as opposed to a professional, and when the cause of the interruption in employment was illness, as opposed
to a willful resignation, applying the maxim,
impotentia excusat legem.16
Judge Redfield refused to accept this ruling as a proper statement of the law, confessing his
inability to reconcile it with the uniform
and long standing numerous decisions
upon the subject. If the law upon any
one subject had been put at rest, and
that beyond all possible cavil, I supposed it was in regard to contracts for
service, where the entire term was to
be performed, before payment of any
part of the price. I consider that in the
present case, by the express terms of
the contract, full performance on the
part of the plaintiff was made a condition precedent to any right of action
against the defendant. If so, it is in vain
to say that the plaintiff was hindered
from performing the service by the act
of God. That is never any excuse for
the nonfulfilment of a condition precedent.
Redfield stood for precedent and tradition; he regarded Bennett’s position as inconsistent with the way courts had ruled in
the past. “Under these circumstances,” he
wrote,
I see no more reason to allow the plaintiff to recover for part performance,
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than exists in almost all cases of this
character, where, from some accident, the situation of affairs becomes
changed, and it is inconvenient for the
party to perform his contract. If a condition precedent is to be got rid of
thus readily, they are not made of such
‘stern stuff’ as we have been taught to
consider them.
Ruminations
decisions. There are twenty dissents filed
between the time Redfield first joined the
Court and 1860, when he retired. Of those
twenty, Redfield filed nine dissents, Milo
Bennett seven. Two of Redfield’s are dissents of his own majority opinion. In seven cases, they disagreed, dissenting to the
other’s decisions. Statistically, that invites a
deeper look.
Redfield’s Dissents
“Upon authority, then,” he concluded, “it is
better to follow established principles, although they may seem to operate severely
in particular cases, and that the contract of
the parties, when explicit, is paramount to
every other consideration, I think the judgment, in this case, should be for the defendant.”17 Despite the difference in age, it is
Redfield who is the conservative, Bennett
the liberal, in this exchange.
Redfield dissented from Bennett’s decision in Preston v. Whitcomb (1839), but reserved his explanation for his disagreement
until he addressed the same issue in Lawrence v. Dole later that year, in his majority decision. The hurried pace during those
years, when the Supreme Court moved
shire to shire one week at a time from the
last Thursday of December, at Burlington,
then in succeeding Tuesdays to St. Albans,
North Hero, Middlebury, Bennington or
Manchester (in alternative years), Newfane,
Woodstock, Chelsea, Montpelier, Danville,
Guildhall, Irasburgh, and ending at Hyde
Park on the last Tuesday of March, before
railroads, left no time for deliberation. It
was cold traveling, and little time to scratch
out a decision before the next shire.18 The
issue was whether proper notice had been
given by the defendant, under the plea of
non est factum, of a special matter, rather
than relying on his general plea.19 After resolving the immediate question, Redfield
turned to the earlier case.
Where the contract refers to the instrument only, I think an obligation
to convey land by a good and sufficient deed, and to deliver possession
of the same, does require, that the defendant should either be in possession of the land, or at least, that there
should not be, at the time of the execution of his deed, an adverse possessio