Battenkill Const. Co., Inc. v. Haig's, Inc.
| Decision Date | 07 October 1975 |
| Docket Number | No. 213-74,213-74 |
| Citation | 133 Vt. 503,346 A.2d 213 |
| Parties | BATTENKILL CONSTRUCTION COMPANY, INC. v. HAIG'S, INC., et al. |
| Court | Vermont Supreme Court |
Whalen & O'Dea, Manchester Center, for plaintiff.
Charles R. Eichel, Manchester Center, for defendants.
Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.
This is an action brought by the plaintiff corporation under a claimed oral contract for services and labor performed for the defendants for the construction and improvements on real estate owned by the defendants located in Winhall, Vermont.
The defendants answered to complaint of the plaintiff by a general denial. Hearing was held in the Bennington Superior Court on July 26, 1974, which resulted in a judgment for the plaintiff against Haig's, Inc. in the amount of $7,341.50, the full amount claimed by the plaintiff in its complaint, plus interest. An appeal was duly taken to this Court, and at the time of hearing the plaintiff appeared and argued his case, with the defendant apparently content to submit its case on the written briefs.
Both sides waived findings of fact below so that the case here is presented only on the judgment.
The services performed by the plaintiff involved stone and masonry work, including the pouring of cement, as a subcontractor for Haig's, Inc. In support of its claim the plaintiff presented oral testimony of its president as well as its bookkeeper, who regularly visited the job site. Admitted as an exhibit were handwritten records of the various charges made by the plaintiff for the time and labor of its employees.
The appeal here is almost entirely based upon the matter of pleadings. Haig's, Inc. claimed that the plaintiff did not have sufficient manpower on the job so that the defendant had to assist in the cement pouring by furnishing additional labor of its own and that the plaintiff used defective workmanship in various aspects of the construction, which would have to be remedied at considerable cost to the defendant. These claims, the defendant argues, could be properly raised as a defense in the nature of a set-off under a pleading of a general denial.
During the hearing below, Haig's offered evidence as to costs incurred by assisting in the cement pouring and to the costs necessary to remedy the defective workmanship. The plaintiff objected that no counterclaim had been filed in the case. This objection was sustained by the lower court. The defendant then asserted that the evidence offered was in the nature of an offset, but the court denied the offer on the ground that offset was not set forth in the pleadings. Subsequently, the defendant moved to have the pleadings amended to conform with the proof that he wished to elicit from the witnesses. Objection was made and sustained by the court.
In its brief here Haig's first contends that the matters upon which it wished to rely were strictly defenses in whole or in part to the plaintiff's cause of action and need not have been set up as a cross-demand. It cites the case of Rutland Sash & Door Co. v. Gleason, 98 Vt. 215, 219, 126 A. 577 (1924). This Court there held in essence that a defendant could reduce the plaintiff's claimed damages by proving that the services were unskillfully or negligently performed. The Court held, under the Practice Act in effect at that time, that matters of recoupment are admissible though not specially pleaded.
The Vermont Rules of Civil Procedure were promulgated by this Court on January 25, 1971, and took effect in July of that year, some years prior to the beginning of this action. V.R.C.P. 86(a). Rule 12(b) states, in part, 'Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required . . . .' Certain exceptions to this requirement are then set forth, none of which, however, are applicable to the case before us.
We now quote, in part, from V.R.C.P. 13(a):
A pleading shall state as a counterclaim any...
To continue reading
Request your trial
-
First Nat. Bank of Boston v. Silberdick
...did not demonstrate prejudice. Bevins v. King, 143 Vt. 252, 255, 465 A.2d 282, 284 (1983); Battenkill Construction Co. v. Haig's, Inc., 133 Vt. 503, 506, 346 A.2d 213, 215 (1975); Deakyne v. Commissioner of Lewes, 416 F.2d 290, 300 (3d Cir.1969) ("Prejudice under the rule means undue diffic......
-
Bevins v. King
...trial and after judgment, provided the opposing party is unable to show prejudice. V.R.C.P. 15(b); see Battenkill Construction Co. v. Haig's, Inc., 133 Vt. 503, 346 A.2d 213 (1975). In this case, defendants first became aware that plaintiffs were relying on Article 2 of the U.C.C. as the le......
-
Campbell v. Dupont, 424-79
...absent a showing of prejudice by the opposing party, is to grant leave to amend. V.R.C.P. 15; see Battenkill Construction Co. v. Haig's, Inc., 133 Vt. 503, 505-06, 346 A.2d 213, 215 (1975). Failure to do so is reversible error. Id. at 506, 346 A.2d at Furthermore, although Rule 56 does stat......
-
Hodgdon v. Stockwell
...which shall be granted barring a showing of prejudice by the opposing party. V.R.C.P. 15(a), (b); Battenkill Construction Co. v. Haig's, Inc., 133 Vt. 503, 506, 346 A.2d 213, 215 (1975). We need not consider whether amendment would have been appropriate here, however, because plaintiff fail......