Barilone Sons Const. Co. v. Reynolds, No. 1640.

Docket NºNo. 1640.
Citation199 A. 259
Case DateMay 03, 1938
CourtUnited States State Supreme Court of Vermont
199 A. 259

BARILONE SONS CONST. CO.
v.
REYNOLDS.

No. 1640.

Supreme Court of Vermont. Washington.

May 3, 1938.


199 A. 259

Exceptions from Washington County Court; Walter H. Cleary, Judge.

Action of contract in the common counts by Barilone Sons Construction Company against E. Reynolds. Judgment for plaintiff, and defendant brings exceptions.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

C. O. Granai, of Barre, for plaintiff. H. C. Shurtleff, of Montpelier, for defendant.

199 A. 260

SHERBURNE, Justice.

This is an action of contract in the common counts. Trial was by court. After findings of fact had been made, judgment was entered in favor of the plaintiff for the amount of its specifications and interest thereon, except for two items waived. The case comes here upon defendant's exceptions.

The first six items in the plaintiff's specifications are for work done at the East Barre flood dam from August 16 to September 30, 1935. Although there was a written contract between the parties whereby the plaintiff took over certain items in a contract between the defendant and the War Department of the United States for certain classes of work at specified hourly rates of compensation, less the discount deducted by the United States Government, and the defendant therein agreed to pay the plaintiff for work performed on the same days that the Government paid him, the plaintiff did not seek to recover upon this contract, but made out a prima facie case for work and labor performed by introducing, without objection, oral testimony that it was employed by the defendant to do this work at the same specified hourly rates of compensation. The written contract was introduced into the evidence by the defendant as a part of his case.

In his first exception the defendant claims that the plaintiff has been allowed seven hours too much time. He contends that on September 26, 1935, the plaintiff should have been allowed only one and one-half hours for the use of its power shovel, instead of the eight and one-half hours allowed by the court. A government clerk upon the project kept the time that the plaintiff worked his equipment, and the defendant got this time from him twice a month. The plaintiff also got the time from this clerk. This clerk did not attend the trial, but the plaintiff produced four papers, marked Plaintiff's Exhibits 2, 2a, 3, and 4, which its treasurer, Ernest Barilone, testified were given to him by this clerk as showing the time worked. These papers were received as exhibits without objection. They show the hours worked each day from August 1 to September 30, 1935. The plaintiff also offered as an exhibit a paper, marked Exhibit 1, which the defendant testified was a certified copy of the time which he had received from this clerk. This exhibit purports to show the hours worked from...

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4 practice notes
  • State v. Baker., No. 329.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 24, 1947
    ...100 Vt. 464, 467, 139 A. 210; State v. Parker, 104 Vt. 494, 502, 162 A. 696; Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 440, 199 A. 259. Such inference has a bearing upon the credit to be given to the State's witnesses. State v. O'Grady, 65 Vt. 66, 69, 25 A. 905. Respondent's ......
  • State v. Levine, Nos. 1801
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1952
    ...100 Vt. 464, 467, 139 A. 210; State v. Parker, 104 Vt. 494, 502, 162 A. 696; Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 440, 199 A. 259; State v. Baker, 115 Vt. 94, 110, 111, 53 A.2d 53. The rule requires counsel to confine his argument to the evidence in the case and to the i......
  • Crawford v. Lumbermen's Mut. Cas. Co., No. 988
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1966
    ...be accepted as true. Piper v. Oakland Motor Co., 94 Vt. 211, 214, 109 A. 911; Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 439, 199 A. 259. It is apparent from the findings that the chancellor gave proper attention to the unsworn statement. However, in the last analysis, he reli......
  • Wakefield v. Champlain Marine Co., Inc., No. 379.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 7, 1940
    ...be accepted as true, neither having plainly been a correction of the other. Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 439, 199 A. 259; Piper v. Oakland Motor Co., 94 Vt. 211, 213, 109 A. 911. There was" also other evidence in the case fairly and reasonably tending to support ......
4 cases
  • State v. Baker., No. 329.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 24, 1947
    ...100 Vt. 464, 467, 139 A. 210; State v. Parker, 104 Vt. 494, 502, 162 A. 696; Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 440, 199 A. 259. Such inference has a bearing upon the credit to be given to the State's witnesses. State v. O'Grady, 65 Vt. 66, 69, 25 A. 905. Respondent's ......
  • State v. Levine, Nos. 1801
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1952
    ...100 Vt. 464, 467, 139 A. 210; State v. Parker, 104 Vt. 494, 502, 162 A. 696; Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 440, 199 A. 259; State v. Baker, 115 Vt. 94, 110, 111, 53 A.2d 53. The rule requires counsel to confine his argument to the evidence in the case and to the i......
  • Crawford v. Lumbermen's Mut. Cas. Co., No. 988
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1966
    ...be accepted as true. Piper v. Oakland Motor Co., 94 Vt. 211, 214, 109 A. 911; Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 439, 199 A. 259. It is apparent from the findings that the chancellor gave proper attention to the unsworn statement. However, in the last analysis, he reli......
  • Wakefield v. Champlain Marine Co., Inc., No. 379.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 7, 1940
    ...be accepted as true, neither having plainly been a correction of the other. Barilone Sons Construction Co. v. Reynolds, 109 Vt. 436, 439, 199 A. 259; Piper v. Oakland Motor Co., 94 Vt. 211, 213, 109 A. 911. There was" also other evidence in the case fairly and reasonably tending to support ......

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