
    ROBERT BENEDICT v. FRANK E. LAWRENCE.
    January Term, 1895.
    
      Trial. Evidence in rebuttal.
    
    The defendant having introduced evidence . of an agreement between the plaintiff and his sister upon the one part, and the plaintiff’s father upon the other, to pay the note of the father to the defendant, the testimony of the sister that no such agreement was made is strictly in rebuttal.
    Assumpsit. Plea, the general issue. Trial by jury at the June term, 1894, Bennington county, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.
    
      Batchelder & Bates, for the defendant.
    The testimony was too remote. Aiken v. Kennison, 58 Vt. 665 ; Walworth v. Barron, 54 Vt. 677 ; Camj) v. Aver-£11, 54 Vt. 320; Moore v. Harvey, 50 Vt. 297; Keith v. Taylor, 3 Vt. 153 ; Rowe v. Bird, 48 Vt. 578 ; Hiñe v. Pomeroy, 39 Vt. 211; Phelps v. Conant, 30 Vt. 277; Bishoj) v. Wheeler, 46 Vt. 409; None v. Northouse, 46 Vt. 587 ; Lincoln v. Manufacturing Co., 91 Mass. 181.
    
      O. M. Barber for the plaintiff.
    The testimony tended to meet an issue first raised by the defendant. Stevens v. Dudley, 56 Vt. 164; Greenl., Ev., s. 517a.
   ROWELL, J.

Plaintiff’s father conveyed his farm and the personal property thereon to the plaintiff and his sister. The question was, whether the plaintiff agreed with the defendant that the price of all the property that the defendant bid off at plaintiff’s auction should be' applied on a note that defendant held against plaintiff’s father, as the defendant claimed, or whether the agreement was that ihe price of only the property bid off that was covered by the chattel mortgage that secured the note should be thus applied, as plaintiff claimed. To support his claim the defendant introduced evidence tending to show that the plaintiff, either alone or jointly with his sister, agreed to pay the note; and the defendant testified that at about the time of said conveyance the plaintiff and his father came to see him, and that his father said in plaintiff’s presence that he had deeded his farm to the plaintiff and his sister, and that they had agreed to pay the note. On rebuttal the plaintiff called his sister, who testified that there was no agreement between her and her brother on the one part and her father on the other that her brother should pay the note. We construe the exceptions to mean that the defendant claimed that the plaintiff, alone or with his sister, had agreed with his father, not with the defendant, to pay the note. That being so, it was clearly competent for the plaintiff in rebuttal to show that no such agreement was made as far as he was concerned, for that exactly met the defendant’s claim in regard to the matter.

Judgment affirmed.  