Barilone Sons Const. Co. v. Reynolds, 1640.
| Decision Date | 03 May 1938 |
| Docket Number | No. 1640.,1640. |
| Citation | 199 A. 259 |
| Parties | BARILONE SONS CONST. CO. v. REYNOLDS. |
| Court | Vermont Supreme Court |
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.
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 September 11 to September 30, and agrees with Exhibits 2 and 2a on the time worked on each day during this period from September 11 to September 30, except on September 26, where it only allows one hour and thirty minutes for the use of the shovel, whereas Exhibit 2 allows eight hours and thirty minutes for the use of the shovel on that day. The only witnesses who testified at the trial were Barilone and the defendant. Barilone did not know the name of this clerk other than as "Sparky," whereas the defendant testified that although called by that title his name was Mr. Daignoult, and that he was the administrative officer at the project. Exhibit 1 purports to be signed by Daignoult.
Because of the defense relied upon and testified to by the defendant, that on September 10, 1935, he had settled with the plaintiff up to that date by giving him a check for $834.88 upon which was indorsed, "In full discharge of all claims to date 9/10/35," which indorsement the court found was not on the check when delivered to the plaintiff, and which check the court found was given for work prior to the work for which suit was brought, the court may have suspected the authenticity and accuracy of exhibit 1. This exhibit is in handwriting different from that of the other exhibits. It is a suspicious circumstance that...
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