Appliance Acceptance Co. v. Stevens, 1317

• Docket Nº: No. 1317
• Citation: 121 Vt. 484, 160 A.2d 888
• Case Date: May 03, 1960
• Court: United States State Supreme Court of Vermont

Page 888

160 A.2d 888 121 Vt. 484 APPLIANCE ACCEPTANCE CO.
v.
Edward W. STEVENS and Mabel S. Stevens. No. 1317. Supreme Court of Vermont. May 3, 1960.

Page 890

[121 Vt. 485] Russell A. Clark, Jr., Springfield, Bernard R. Dick, Rutland, for plaintiff.

William F. Kissell and Tony F. Kissell, Bellows Falls, for defendant.

Before [121 Vt. 484] HULBURD, C. J., and HOLDEN, BARNEY and SMITH, JJ.

[121 Vt. 485] BARNEY, Justice.

An earlier stage of this case was reported in 120 Vt. 255, 138 A.2d 309. This is an appeal following hearing on the merits. The defendants seek review of the trial court's findings of fact and judgment in favor of the plaintiff. Briefly stated, the recovery enforces against the defendants a note executed by them now held by the plaintiff.

[121 Vt. 486] The plaintiff brought its action on the note by virtue of a declaration in contract on the common counts with a specification setting forth the note verbatim. At the trial plaintiff proposed to amend by adding a second count declaring specially on the note and by amending the original specifications. Both the original declaration with its specifications and the offered amended declaration seek recovery on an indebtedness now owned by the plaintiff originally running to 'Foodmaster of Keene, Inc.' The note evidencing the obligation was set out as payable to 'Foodmaster of Keene, Inc.' in the original specifications, and plaintiff's motion to amend would change the payee to 'Foodmaster of Keene, N. H.' in accordance with the reading of the original note, as shown by the copy attached to the proposed second count. The defendants objected to the amendments on the grounds that the additional count required new defenses and that the change in payee amounted to the substitution of a new obligation, amounting to the institution of a new cause of action. The amendments were allowed and defendants were granted exceptions. Adding a count by amendment to plead specially a note originally declared on as a specification under common counts has long been permissible procedure. Vaughn v. Rugg, 52 Vt. 235, 238. Further, the amendment was not the substitution of a new cause of action if it was merely a correction of a misrendering in the pleadings of the very instrument being sued upon. Lycoming Fire Insurance Co. v. Billings, 61 Vt. 310, 312, 17 A. 715. The court was authorized to go outside the record to satisfy itself that this was such a correction, and, in the absence of a record, we will presume it did so. Lycoming Fire Insurance Co. v. Billings, supra, 61 Vt. at page 311, 17 A. 715; Davis' Adm'x v. Rutland Railroad Company, 82 Vt. 24, 29, 71 A. 724. Nothing has been produced in this Court to indicate that allowing the amendments introduced a new subject of controversy, therefore defendants' exceptions are not sustained. City Electrical Service & Equipment Co. v. Estey Organ Co., 116 Vt. 435, 437, 77 A.2d 835.

The defendants claim that the jurisdiction of the trial court over the litigation had expired prior to the rendition of [121 Vt. 487] judgment on September 9, 1959. The cases cited in support of this proposition rely on a statute which was subsequently amended in 1929 to the present 4 V.S.A. § 119, which provides:

'Whenever the presiding judge or the judges of a county court have begun the hearing of a cause on its merits at a stated term thereof or in vacation after a stated term, he or they may finish such hearing and render judgment therein at any time before the opening of the second stated term thereafter.'

Page 891

This matter was heard during vacation of the December Term, 1958, of Windsor County Court. The next term of that court was the June Term, 1959. It was during vacation of this June term that the judgment was rendered, prior to the commencement of the December Term, 1959. The compliance with the terms of the statute are so apparent as to require no further comment.

In their appeal defendants express concern because, they say, there is nothing in the record of the proceedings to indicate any disposition of count one of the amended complaint. An examination of the complaint as amended discloses that both counts seek to recover money due on account of a single...