Angelo P. Ambrosini v. N. Pelaggi & Co.

• Decision Date: 20 January 1920
• Citation: 108 A. 916,94 Vt. 119
• Parties: ANGELO P. AMBROSINI v. N. PELAGGI & COMPANY
• Court: Vermont Supreme Court

108 A. 916

94 Vt. 119

ANGELO P. AMBROSINI v. N. PELAGGI & COMPANY

Supreme Court of Vermont

January 20, 1920

February Term, 1919.

ACTION OF CONTRACT. Plea, the general issue and declaration in offset. Trial by court in the Barre City Court, H. William Scott, Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment reversed, and cause remanded.

E R. Davis for the plaintiff.

S Hollister Jackson for the defendant.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

MILES, J.

The plaintiff, who is a granite carver, sued the defendant for the stipulated price for cutting a granite bas-relief. The defendant pleaded the general issue and filed a declaration in offset, under which he claimed to recover for the breach of another contract by which the plaintiff agreed to cut in an artistic manner, and precisely according to a model furnished by the defendant, the figure of an angel, approximately of the dimensions specified. The defendant was to furnish for the work a block of granite of the measurements required, machines, air, and tools, and was to pay a stipulated price in stated instalments.

The court found on the plaintiff's claim that he was entitled to recover the sum claimed by him with interest, and to the correctness of this finding no question is made.

Upon the defendant's claim the court found that the plaintiff failed to perform his part of that contract, in consequence of which the defendant was damaged in the sum of $ 107.57, which sum the court allowed to the defendant and rendered judgment for him in the sum of $ 48, being the balance between the sum allowed the plaintiff and the sum allowed the defendant. The question here raised, as presented in the plaintiff's brief, is whether letters from the party who furnished the granite for the statue were admissible in evidence, whether the findings of the court were supported by the evidence, and whether there was error in the judgment rendered upon the facts found. The letters consisted of answers by the party furnishing the granite to letters of the plaintiff charging that party with having furnished a block of granite not suitable for the manufacture of the statute, and the substance of the answers was that the granite was suitable for the purpose for which it was furnished. As claimed by the plaintiff, the offer was to show that the granite furnished was suitable for the manufacture of the statue as called for by the contract, and that the letters were received for that purpose; but the defendant claimed that they were offered and received to show the lack of good faith on the part of the plaintiff in refusing to go on with the job. It is not clear which is right, and that is of no importance; for, if received for the former purpose, they were not admissible, because they were clearly hearsay evidence, and they were equally inadmissible if received for the latter purpose, for no question of good or bad faith is involved in this case. It was error to receive the letters. They had no tendency to prove any issue raised by the pleadings in the case.

The real question in the case is whether the plaintiff was justified in abandoning the job as he did. The case shows that, when he discovered the claimed defect in the granite furnished, and communicated his discovery to the defendant and tried to arrange with him to either get a block of granite about which there was no doubt of its suitableness or take the risk of a failure to meet the strict requirements of the contract because of the claimed defects, and the defendant refused to do either, he had to choose which of two courses he would follow; whether he would proceed with the work or abandon the contract and take the risk of the damage that might result from such a course. He adopted the latter course. The defendant claims that he was not justified in refusing to go on with the work and complete the job, and that the findings and judgment of the court below are amply supported by the evidence in the case. To support the trial court's finding that the cutters employed by the defendant to complete the job after the defendant abandoned it were able to complete the statue substantially as called for by the contract with the plaintiff, out of the granite furnished, the defendant calls our attention to the testimony of the defendant, Pelaggi, who testified that when the statute was finally completed it did not vary one-sixteenth of an inch from the dimensions called for in the contract; and, though one Johnson, who measured and assisted in finishing the statue after the plaintiff ceased to work...