Aube v. O'Brien, No. 125-80
| Docket Nº | No. 125-80 |
| Citation | 140 Vt. 1, 433 A.2d 298 |
| Case Date | June 09, 1981 |
| Court | United States State Supreme Court of Vermont |
Page 298
v.
Daniel O'BRIEN, Leo O'Brien, d/b/a O'Brien Brothers and
Euclide Quesnel.
[140 Vt. 2] Cleveland, Unsworth & Bennett, Shelburne, for plaintiffs.
William H. Quinn and James W. Coffrin of Pierson, Affolter & Wadhams, Burlington, for defendants O'Brien.
Before [140 Vt. 1] BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.
[140 Vt. 2] UNDERWOOD, Justice.
The plaintiffs' amended complaint included four separate counts: Count I alleged the 1974 sale of fourteen cows, infected with brucellosis, which the defendants expressly and impliedly warranted to be merchantable in quality and fit for use as dairy cattle; Count II alleged strict liability in tort as a result of the defendants' sale of the cattle in a dangerous condition; Count III alleged that the defendants were negligent
Page 299
in selling diseased cattle; Count IV alleged that the defendants, at the time of the sale, fraudulently misrepresented the condition of the cattle. Plaintiffs seek compensatory and punitive damages for the loss of cattle, loss of milk production and general business losses.Defendants O'Brien moved for summary judgment on all counts on the ground that the plaintiffs were barred by 12 V.S.A. § 512(5), a three year statute of limitations. The court granted the motion and entered judgment for the defendants O'Brien. The plaintiffs appeal that judgment on the theory that the statute of limitations applicable to Count I, 9A V.S.A. § 2-725(1), is a four year statute, which, as a result of fraudulent concealment by the defendants, was tolled for a sufficient period to render the action timely. Plaintiffs concede that under either statute of limitations, they are barred from proceeding on the causes of action enumerated in Counts II [140 Vt. 3] and III. The allegations in Count IV, although not presented as the basis for an independent cause of action, are urged on appeal in support of the tolling of the statute of limitations relied upon in Count I.
There are three operative dates. The final sale took place in July 1974, brucellosis was discovered in April 1975 and suit was instituted in October 1978. The plaintiffs' cause of action was therefore timely interposed only if the four year statute of limitations applies and a sufficient tolling of that period is established through proof of fraudulent concealment. We hold that the four year statute applies and that the question of fraudulent concealment is one for the jury. We therefore reverse and remand.
12 V.S.A. § 512 provides in part:
Actions for the following causes shall be commenced within three years after the cause of action accrues, and not after:
....
(4) Except as otherwise provided in this chapter, injuries to the person suffered by the act or default of another person, provided that the cause of action shall be deemed to accrue as of the date of the discovery of the injury;
(5) Damage to personal property suffered by the act or default of another.
The pertinent provisions of 9A V.S.A. § 2-725 are as...
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Rutz v. Essex Junction Prudential Committee, No. 82-087
...When two such statutes are in conflict to the extent they cannot be reconciled, the specific will usually prevail. Aube v. O'Brien, 140 Vt. 1, 4, 433 A.2d 298, 299 (1981). The rule does not aid the plaintiff; the two statutes are not in conflict. Section 1162 authorizes but does not require......
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Vermont Plastics, Inc. v. Brine, Inc., No. 2:91-CV-203.
...buyer could recover lost profits under the UCC where there was privity of contract between the buyer and the seller. In Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298 (1981), the court was faced with determining whether a general statute of limitations applied or the statute of limitations provid......
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Brooks Cotton Co. v. Williams, No. W2011–01415–COA–R9–CV.
...428 (1973); Nelson v. Union Equity Co-op. Exchange, 548 S.W.2d 352 (Tex.1977); Lish v. Compton, 547 P.2d 223 (Utah 1976); Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298 (1981); Fred J. Moore, Inc. v. Schinmann, 40 Wash.App. 705, 700 P.2d 754 (1985). We find the Colorado case of Colorado–Kansas Gr......
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Kellogg v. Wyeth, Case No. 2:07–cv–82.
...that Kellogg was in privity with Wyeth, and that therefore the sales contract statute of limitations must apply, citing Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298 (1981). Even were this Court able to find that Kellogg's claims arise out of a sale of goods, and that she was in privity with Wye......
-
Rutz v. Essex Junction Prudential Committee, No. 82-087
...When two such statutes are in conflict to the extent they cannot be reconciled, the specific will usually prevail. Aube v. O'Brien, 140 Vt. 1, 4, 433 A.2d 298, 299 (1981). The rule does not aid the plaintiff; the two statutes are not in conflict. Section 1162 authorizes but does not require......
-
Vermont Plastics, Inc. v. Brine, Inc., No. 2:91-CV-203.
...buyer could recover lost profits under the UCC where there was privity of contract between the buyer and the seller. In Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298 (1981), the court was faced with determining whether a general statute of limitations applied or the statute of limitations provid......
-
Brooks Cotton Co. v. Williams, No. W2011–01415–COA–R9–CV.
...428 (1973); Nelson v. Union Equity Co-op. Exchange, 548 S.W.2d 352 (Tex.1977); Lish v. Compton, 547 P.2d 223 (Utah 1976); Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298 (1981); Fred J. Moore, Inc. v. Schinmann, 40 Wash.App. 705, 700 P.2d 754 (1985). We find the Colorado case of Colorado–Kansas Gr......
-
Kellogg v. Wyeth, Case No. 2:07–cv–82.
...that Kellogg was in privity with Wyeth, and that therefore the sales contract statute of limitations must apply, citing Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298 (1981). Even were this Court able to find that Kellogg's claims arise out of a sale of goods, and that she was in privity with Wye......