Bass v. Rublee

• Decision Date: 21 May 1904
• Parties: E. L. BASS v. H. J. RUBLEE
• Court: Vermont Supreme Court

57 A. 965

76 Vt. 395

E. L. BASS v. H. J. RUBLEE

Supreme Court of Vermont

May 21, 1904

January Term, 1904.

SPECIAL ASSUMPSIT on a simple contract in modification of a contract under seal for the sale and delivery of lumber. Plea, the general issue with notice. Trial by jury at the June Term, 1903, Orange County, Munson, J., presiding. At the close of the plaintiff's evidence a verdict was ordered for the defendant. The plaintiff excepted. The opinion states the case.

The pro forma judgment is reversed and cause remanded.

M M. Wilson and Darling & Darling for the plaintiff.

Present ROWELL, C. J., TYLER, START, WATSON, STAFFORD, and HASELTON, JJ.

OPINION

WATSON

The declaration is special assumpsit in three counts severally declaring on a written contract dated February 13 1901, sealed and subscribed by the plaintiff and the defendant, whereby the defendant promised and agreed to furnish to the plaintiff in the cars at East Berkshire in the month of June, 1901, certain specified lots of maple lumber to be paid for by the plaintiff as therein stipulated. It is further alleged that subsequently the parties by mutual agreement not under seal extended the time for the delivery of the lumber without setting a time limit therefor, and that in pursuance of the contract so modified as to time, thereafter between the dates in the several counts alleged, the defendant delivered to the plaintiff a portion of the lumber specified in the agreement and received payment therefor. Then follow allegations of the defendant's breach of the contract in neglecting and refusing, though requested, to deliver the balance of the lumber, etc.

At the close of plaintiff's opening evidence, the defendant moved for a verdict on the grounds that (1) there was no evidence of any agreement between the parties to extend the terms of the contract beyond its original stipulation; and (2) there was no evidence of such an extension as is set up in the writ. The motion was granted pro forma, to which plaintiff excepted.

The record shows that the plaintiff testified in effect that the defendant could not get the lumber out in June, the time specified in the original contract; that in June they mutually agreed that, since the lumber could not be ready to ship until in the fall, the time should be extended till fall; and that then they would survey and ship the lumber when it was ready. The subsequent correspondence between the parties, and their actions regarding the lumber tended to show the same thing. Since there was evidence to go to the jury on the question whether the original contract was modified as claimed by the plaintiff, it was error to order a verdict.

If the second ground stated in the motion could be considered as covering a variance, if any there be, between the time for the performance of the modified contract as alleged, and that which the evidence tends to show, we do not so consider it, for it appears from the record that it was not so treated by the defendant in the court below, and it is not so treated in his brief here.

It is urged by the plaintiff that if it was error to direct a verdict, he is entitled to final judgment in his favor in this court. Hereon it is argued that the motion for a verdict was equivalent to a demurrer to the evidence, and is governed by the same rules, referring to Latremouille v Bennington & Rutland Ry. Co., 63 Vt. 336, 22 A. 656. There in discussing the defendant's motion for a verdict, made at the close of the evidence, it is said that "such a motion is like a demurrer to the whole evidence, on the ground of its insufficiency to warrant a verdict for the plaintiff if one should be found. The motion could not be entertained, if, as the case stood, there was any evidence tending fairly and reasonably to support the claim of the plaintiff. If the verdict was to be determined by an inference, to be made by the jury from facts, any of which was more or less in dispute, the disputed fact, or facts, were to be determined, and the inference made by the jury. So long as...