be subject to his disposal or liable for his, this argument might have when appropriate debts. By Acts of 1888, No. 84, the fore- to the circumstances of the case in hand, it going section was amended by striking out has none here where the husband and his the words, "by her personal industry or," wife were engaged in carrying on the busithereby making the law as it hitherto has ness together. been and now is in section 3524 of the General Laws 1917. [3] That estates in entirety may exist in personal property growing out of real estate so owned was held in Citizens' Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 99 Atl. 250. And no good reason is apparent why such an estate may not exist in other personal property. We think it can. Although there is some difference in judicial opinion on the question in other jurisdictions, we think the better view is as here stated, and in support of it cite the following cases: Phelps v. Simons, 159 Mass. 415, 34 N. E. 657, 38 Am. St. Rep. 430; Boland v. McKowen, 189 Mass. 563, 76 N. E. 206, 109 Am. St. Rep. 663; Bramberry's Appeal, 156 Pa. 628, 27 Atl. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64; Parry's Estate, 188 Pa. 33, 41 Atl. 448, 49 L. R. A. 444, 68 Am. St. Rep. 847; Johnston v. Johnston, 173 Mo. 91, 73 S. W. 202, 61 L. R. A. 166, 96 Am. St. Rep. 486; also 13 R. C. L. 1105, sec. 128. [4] It has been held by this court that the statute exempting from attachment or levy of execution for the sole debts of the husband, during coverture, the rents, issues, and profits of the real estate of a married woman, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she acquires by gift, grant, devise, or inheritance, during coverture, applies to estates by entirety, the court saying that such estate is the real estate of a married woman, although her husband is joined with her in the title; that it is the real estate of each; and that, under a holding that the statute applies only to real estate owned by the wife separately, the interest of the husband in his wife's right in her real estate could be taken upon the sole debt of the husband, which would annul the statute. Corinth v. Emery, 63 Vt. 505, 22 Atl. 618, 25 Am. St. Rep. 780; Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340. The same course of reasoning is equally forcible when applied to section 3524 of the statute, relating to personal property and rights of action of a married woman, and we hold that estates by entirety are within the provisions of that section. [5] It is urged that it is still within the power of the wife to give to her husband the same rights to her personalty that he took at common law, and that this is just what she does when she turns such property over to him to be used in carrying on a general mercantile business, with unlimited power to commingle her property with his and the right to dispose of the same at will. Whatever force The fact that with funds owned and held by the husband and wife as tenants by entirety they engaged in mercantile business ostensibly as partners did not change the character of the estate. In law, as between themselves, the business was carried on by them as such tenants, and the property purchased for that purpose, including goods as needed, and the proceeds from the sales were owned and held in the same manner; and on the death of the husband the wife took the whole estate by right of survivorship. Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340; Citizens' Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 99 Atl. 250. It follows that since none of such property belonged to deceased husband's estate, none could by right enter into the administrator's account. Other questions were presented in argument, but it is unnecessary to consider them. Decree affirmed. To be certified to the probate court. (94 Vt. 26) NEWLIN v. NEWLIN. (No. 181.) (Supreme Court of Vermont. Jan. 7, 1920.) 1. DIVORCE 37(6)-TIME WHEN DESERTION IS COMPLETE. Desertion is a continuing matrimonial offense, and as a cause for divorce is not complete until the end of the three full years, provided by G. L. 3560, from its inception. 2. DIVORCE 61-DESERTION WITH INCEP TION IN OTHER STATE BUT COMPLETED IN Though the desertion of husband by wife at its inception was while the parties resided in Indiana, the cause for divorce accrued at the end of the three-year desertion period stipulated by G. L. 3560, when the husband was a bona fide resident of Vermont, so that it is not necessary to inquire whether the cause accrued in Vermont, as the two years' residence in the state is required by 3561 only when the cause accrued in another state and while neither party was a resident of Vermont. Exceptions from Caledonia County Court; Zed S. Stanton, Judge. Suit for divorce by Charles E. Newlin against Harriet B. Newlin. Decree dismissing petition, and libelant excepts. Decree reversed, and cause remanded. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Searles & Graves, of St. Johnsbury, for libelant. (108 A.) 623, 27 Atl. 609. It follows that the cause does not "accrue" until the end of the statutory period. Koch v. Koch, 79 N. J. Eq. 24, 80 Atl. 113. In the case at bar, though the desertion, if such it was, had its inception while the parties resided in another state, the cause for divorce accrued when the libelant was a bona fide resident of Vermont and had been for about a year. This being so, we do not need to inquire whether the cause accrued in this state, for the two years' residence is required only when the cause accrued in another state and while neither party was a resident of this state. The manifest purpose of the statute is to extend the required time of residence to discourage the establishment of a residence here merely for the purpose of divorce proceedings. To accomplish this result, the longer time is required when the act complained of has accrued out of the state and while neither party was a resident of the state, provided they had not previously lived together here as husband and wife. A cause for divorce which accrues out of the state is not within the provisions of this statute, if the parties have had a prior marital residence in the state, or if either party was a resident of the state when the cause accrued. It follows that the court erred in dismissing the libel on the ground selected. Decree reversed, and cause remanded. TAYLOR, J. The libelant seeks a divorce [ until the end of three full years from its on the ground of desertion. The parties inception. Hemenway v. Hemenway, 65 Vt. were married in Indiana in 1884 and lived together there as husband and wife until 1913. The libelant bought a farm in Barnet, Vt., in 1912, intending to live there; but the libelee refused to remove with him to Vermont. This farm was sold in 1913. About this time their differences reached a point where they ceased to cohabit, although they continued to live in the same house. The libelant was engaged in lecturing and kindred pursuits. In March, 1916, when he was about to go on an extended lecture tour, the libelant endeavored to have the libelee go with him, as his health was not good; but she refused. Thereupon the libelant went away against the libelee's will and has not returned to live with her since. Later in the same month the libelant saw the libelee and tried to persuade her to live with him, but she refused. The claimed desertion dates from this interview. The libelant came to Vermont to reside in March, 1918, and has resided in Caledonia county since June 12, 1918. He has tried on various occasions to have the libelee came to Vermont to live with him, but she has absolutely refused to do so. The cause was heard at the June term, 1919, of Caledonia county court. The court dismissed the libel solely on the ground that the libelant had not been a resident of the state for the period of two years, making no finding on the question of desertion. The libelant was allowed an exception based on the claim that the desertion accrued in this state in March, 1919, while he was a resident of Vermont. The question presented requires a construction of G. L. 3561, which provides: "A divorce shall not be decreed for a cause which accrued in another state or country before the parties lived together in this state as husband and wife, and while neither party was a resident of this state, unless the libelant has resided in this state at least two years and in the county where the libel is preferred at least six months preceding the term of court to which such libel is preferred." (135 Md. 105) MARYLAND CASUALTY CO. v. EAST BAL- TO GIVE OPINION AS TO VALUE. A general contractor and builder who had been raised on a farm and had done considerable work in clearing timber land was qualified to give opinion testimony as to the value of fence posts 7 and 11 feet long when on the land where cut. 2. EVIDENCE 543(4)-WITNESS QUALIFIED TO GIVE OPINION AS TO VALUE. of about 40 years, who planned and superinAn architect and engineer, of an experience tended work under a contract for the clearing of land, was qualified to express his opinion as to the value of 7 and 11 foot fence posts to be furnished by the contractors for the work out of the timber on the land to be cleared; he being familiar with the values he was asked to estimate. Other pertinent provisions are to be found in G. L. 3560, where it is provided that a divorce from the bond of matrimony may be decreed for willful desertion for three consecutive years, and in G. L. 3563, which provides that a divorce shall not be granted for any cause, unless the libelant has resided in the state one year next preceding the filing of the libel in court. It will be seen that the necessary residence was shown unless the case comes within the provisions of G. L. 3561, and this depends upon when 3. DAMAGES 121-RIGHT TO RECOVER FOR the cause for divorce accrued in contemplation of this section of the statutes. [1, 2] "Desertion" is a continuing offense and as a cause for divorce is not complete LOSS OF MATERIAL FROM DEFAULT DESPITE Where contractors agreed to clear land for $1,800 and all timber and cordwood cut ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cept 6,000 fence posts, which they agreed to leave for the owner, and the contractors did not leave any fence posts, to complete their engagement in that respect, but did remove timber without clearing the whole of the land, the measure of the owner's damages would include the loss of fence posts resulting from the default, though the work as a whole had not been finished by the owner since the default; the owner not being limited to the cost of completing the work as the sole measure of damages. 121-MEASURE OF DAMAGES FOR BREACH OF CONTRACT TO COMPLETE CLEARING OF LAND FOR MONEY PAYMENT AND PART OF TIMBER. 4. DAMAGES In an action by an owner of land against contractors to clear it for $1,800 and all timber and cordwood cut, except 6,000 fence posts, the contractors having left no posts to complete their engagement in such respect, but having removed timber without clearing all the land, in view of the contractors' default, they will be charged with the value of such a proportion of the 6,000 posts contracted for as may be estimated in the ratio which the acreage of removed timber bears to the area to be cleared, and credited with a due proportion of the money payment in consideration of work actually done, less any amount paid. 5. CONTRACTS Suit by the East Baltimore Driving Association, Incorporated, a body corporate, against the Maryland Casualty Company, a body corporate, and Pinning & Co. judgment for plaintiff, defendant Casualty From Company appeals. Affirmed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, and ADKINS, JJ. Charles T. Reifsnider, of Baltimore (Walter L. Clark, of Baltimore, on the brief), for appellant. Jacob S. New and Julius H. Wyman, both of Baltimore, for appellee. URNER, J. The Maryland Casualty Company, as surety for Pinning & Co., a firm of contractors, executed a bond to the East Baltimore Driving Association, Incorporated, to "indemnify the obligee against any loss or damage directly arising by reason of the failure of the principal to faithfully perform" the written contract to which the bond refers, and which it describes as providing "for clearing site and furnishing fence posts on eighty acres of land at Benjies Station, 316(1)-NO WAIVER THROUGH Maryland." In the contract itself the work ACQUIESCENCE OF AGENTS. The acquiescence, by the agents of an owner of land, in the removal of timber by a contractor to clear the land before the contractor's breach by failing to clear all the land and nevertheless removing timber, did not imply any waiver of the owner's right to have the contract fully performed according to its terms. 6. APPEAL AND ERROR 1068(5)—REFUSAL OF INSTRUCTION TO IGNORE ITEMS OF DAM- Where it is apparent from the record that the jury in making up the verdict did not consider certain items of recovery abandoned on trial, refusal to defendants of their prayer for instruction that there was no legally sufficient evidence to justify any allowance for such items was harmless. 7. PRINCIPAL AND SURETY 129(1)-WAIVER BY SURETY OF PROVISION FOR NOTICE. Correspondence between plaintiff and defendant surety for its contractor held sufficient to show waiver of the provision of the bond that written statement to the surety by registered mail of any default on the part of the contractor within 10 days should be a condition precedent to recovery on the bond. 8. TRIAL 260(1)-HARMLESS REJECTION OF PRAYER COVERED BY PRAYER GRANTED. The rejection of a prayer for instruction was not injurious, where the theory it involved was sufficiently presented by another prayer, which was granted. to be performed by Pinning & Co., party of the first part, for the East Baltimore Driving Association, party of the second part, is thus specified: "To cut down all trees now on the 80 acres of land to be used by the party of the second part for a race course, except such trees that the said party of the second part may designate that they desire to remain standing. To cut down all brush on said acres and to either remove same or burn, this to be left to the discretion of the said party of the first part. To take out of said acres of land all stumps, and to remove them from the said land, and to burn all leaves. And all timber cut down to be the property of the party of the first part. To furnish on the said land 6,000 fence posts from materials now on the land, 3,000 posts to be 7. feet long and 3,000 to be 11 feet long." It was provided that 12 acres of the ground should be cleared in 30, and the remainder of the tract in 60, working days. The amount agreed to be paid for the entire work was $1,800, of which one-half was payable when half of the work was done, and the balance when it was fully completed. The pending suit on the contractors' bond was brought to recover damages occasioned by their failure to finish the work which the contract required them to perform. It was alleged in the declaration that the work was begun, but was afterwards abandoned and left to a large extent unfinished. The bill of particulars as to the damages claimed for Appeal from Superior Court of Baltimore the breach of the contract contained four City; Chas. W. Heuisler, Judge. "To be officially reported." items, three of which were estimates of the cost of completing the work, which in fact (108 A.) has never been resumed by any one, and the | which he testified. This is not a valid obfourth item was: "To amount of lumber, wood and trees removed from said property in direct violation of the contract and which, under the contract, were to be left on the premises and used as fence posts and posts, $2,000." jection. The proof to which we have referred as to the experience and knowledge of the witness was sufficient to support the ruling of the trial court that he was qualified to express an opinion on the subject of the inquiry. The same observation applies to the admission as against the third exception of the testimony of the architect, who planned and superintended the work under the contract, as to the value of the posts to be furnished by the contractors out of the timber on the land to be cleared. It was testi itect and engineer for about 40 years, and that he was familiar with the values which he was asked to estimate. He stated that the posts, of the two sizes designated, were worth 50 and 65 cents apiece respectively. [3] A more important question raised on the three exceptions we have considered is whether any evidence as to the value of the posts is admissible in view of the fact that the plaintiff did not proceed to have the work completed, and did not thus demonstrate, or otherwise prove, the extent to which the posts could not be supplied from the trees remaining on the property. This is a fundamental question in the case. It is not only raised in reference to the admissibility of the evidence on which the plaintiff's recovery was based, but it is involved in some of the prayers which are presently to be discussed. contention is that the plaintiff can recover only for actual losses sustained as the result of the failure of the contractors to finish the work, and that evidence as to the value of the posts was "irrelevant unless plaintiff further showed that it had actually purchased the posts, and was compelled to do so in order to complete the contract, because there was insufficient or no timber on the land from which posts could be fabricated." The Issue was joined in the case on pleas filed separately by Pinning & Co. and the Maryland Casualty Company, and the trial resulted in a verdict and judgment in favor of the plaintiff for $1,500. The pleas of the casualty company, which is the only appel-fied by this witness that he had been an archlant, make defense on the ground that the plaintiff corporation did not on its part perform the contract or comply with requirements of the bond which were therein made conditions precedent to its enforcement. It is averred in the pleas that while the contractors performed more than one-half of the work to be done under the contract, and thus became entitled to be paid one-half of the stipulated sum of $1,800, yet no part of the amount so earned was paid except the sum of $200, and that the plaintiff failed to deliver to the casualty company, as required by the bond, a written statement of the contractors' default within 10 days after it came to the plaintiff's knowledge. There were other pleas of the same defendant denying that the plaintiff sustained any loss on account of the alleged breach, or that any default occurred on the part of the contractors. The record contains five bills of exceptions. From the first it appears that, after proving the contract and the bond and offering testimony tending to show that the contractors abandoned the work when much less than half of it was completed, and that they furnished no posts as required by the contract, the plaintiff called a witness, who testified that he had examined the land in question and the timber on it before and since it was partially cleared by Pinning & Co., that he was a general contractor and builder, had been raised on a farm, and had done considerable work in clearing timber land, and that in the spring of 1917, when operations were in progress under this contract, he bought posts of the kind specified for 50 cents apiece in Baltimore city, about 13 miles distant from the land on which the work was being conducted. The witness was then asked what 3,000 posts 7 feet long, cut on the land in 1917, were worth. An objection to this question was overruled, and the witness answered that he would say they were worth about 25 cents each. The second exception was taken to a similar ruling on a question asked the same witness as to the value of 11 foot posts cut on the land at the period mentioned, and to which he replied that they were worth about thirty cents apiece. [1, 2] The two exceptions just noted were based partly on the theory that the witness was not qualified to estimate the values to No effort was made to prove any loss except that which is claimed to have resulted from the breach of the provision as to the posts. The claims in the bill of particulars for the cost of completing the work were abandoned, the plaintiff not having in fact proceeded with the project, and the only testimony as to damages was offered on the theory that a loss had been incurred through the removal of a large part of the timber, and the discontinuance of the work, without any of the 6,000 posts contracted for being made and left on the premises. There is evidence to the effect that the trees were cut down and removed from about 45 of the 80 acres to be cleared, and the area as a whole was estimated to produce from 150 to 300 posts per acre, in addition to large quantities of cordwood. It could be found, therefore, from the testimony in the 'case that the timber taken away would have yielded considerably more than the number of posts mentioned in the agreement, and that from the remaining timber also the spec [5] The fourth exception was taken to the exclusion of testimony to the effect that the plaintiff's representatives knew of the removal of timber while the work was in progress, and made no objection. There was no injurious error in this ruling. The acquiescence of the plaintiff's agents in the removal of timber before the breach complained of did not imply any waiver of its right to have the contract fully performed according to its terms. ified number could be produced. But when, paid. While no instruction was proposed to the work was abandoned only a very small this effect, the verdict rendered in the case part of the ground had been cleared of is not necessarily inconsistent with the measstumps, according to the plaintiff's witnesses. ure of recovery we have just defined. The right of the contractors to any of the timber was conditioned upon the full performance of their contractual duties. If they had done the work agreed upon, they would have been entitled to all the timber involved in the operation, except the 6,000 posts which the owner reserved. It was the purpose of the contract that the timber, not required for the stipulated number of posts, should form a substantial part of the compensation to the contractors for the work of clearing the ground. In view of their failure to continue and complete the work, their appropriation of timber, to the extent of a proportion of the posts it would have yielded, has had the effect of depriving the plaintiff of property to which it is entitled. The breach of the contract has resulted in a loss to the plaintiff of material having a value 'which is capable of being proven. The only other exception relates to the prayers. None were offered by the plaintiff, but the defendant casualty company proposed 14 instructions, of which the sixth, seventh, eighth, ninth, eleventh, and fourteenth were granted, and the first, second, third, fourth, fifth, tenth, twelfth, and thirteenth were rejected. The defendants Pinning & Co. offered two prayers, both of which were granted. The first prayer of the casualty company sought to direct a verdict in its favor, and its second and thirteenth prayers would have limited recovery to nominal damages. What we have already said is sufficient to indicate our view that these prayers were properly refused. [6] By the third prayer of the same defendant it was proposed to instruct the jury that there was no legally sufficient evidence to justify any allowance for the cost of com In order to sustain the theory of the defendants it would be necessary to hold that, notwithstanding the total breach of the contract as to the posts, the plaintiff has suffered no provable loss on that account, because, if the work had been carried to completion the posts which the contractors agreed to furnish might have been made out of the remaining trees. A ruling to that effect would place an undue restriction upon the liability of the contractors and of the surety on their bond. The conditions pre-pleting the work of clearing the land, as mensented are unusual, and the rights and re- tioned in three of the items in the bill of parsponsibilities of the parties, in view of the ticulars. As already stated, the plaintiff apbreach of the contract, are not readily sub- pears to have abandoned these items at the ject to precise definition, but certainly the trial, and it was distinctly admitted that no plaintiff should not be debarred from proving such cost had been incurred. The eleventh an actual loss of material resulting from a prayer, which was granted, instructed the particular default merely because the work jury that if the plaintiff did not incur the as a whole has not since been finished. This expenses estimated in those items, they could case is very different from actions for dam- not be allowed. It is fairly apparent from ages caused by the discontinuance of work the record that the jury did not take the under ordinary construction contracts, where abandoned items into consideration in makthe usual inquiry is simply as to the cost of ing up their verdict. While the third prayer completing the work. Here the plaintiff is should have been granted, it is reasonclaiming the value of material which it has ably certain that no prejudice resulted to lost through a breach of contract, and in our the defendants in view of the other condiopinion the evidence offered, reflecting upon tions to which we have referred. the amount of the loss, was admissible. [4] Under the special circumstances of the case we think a proper method of adjusting the rights and liabilities existing in view of the default under the contract, from the standpoint of the plaintiff's evidence, is to charge the defendants with the value of such a proportion of the 6,000 posts contracted for as may be estimated in the ratio which the acreage of the removed timber bears to the total area to be cleared, and to credit the defendants with a due proportion of the monetary compensation provided by the contract, in consideration of the work actually done, The fourth and twelfth prayers present the theory that if, after the contractors discontinued the work, there remained on the land enough timber to supply the number and sizes of posts mentioned in the contract, then no recovery could be had on account of the removal of timber by the contractors. For the reasons stated earlier in the opinion we approve of the rejection of these prayers. [7] The casualty company's fifth prayer would have instructed the jury that according to the uncontradicted evidence the contractors did not finish 12 acres of the land in 30 working days, as required by the contract, |