Bethel Mills, Inc. v. Richard Whitcomb

• Decision Date: 08 November 1950
• Docket Number: 1236.
• Citation: 76 A.2d 548,116 Vt. 357
• Parties: BETHEL MILLS, INC. v. RICHARD WHITCOMB
• Court: Vermont Supreme Court

76 A.2d 548

116 Vt. 357

BETHEL MILLS, INC. v. RICHARD WHITCOMB

No. 1236

Supreme Court of Vermont

November 8, 1950

October 1950.

ACTION OF CONTRACT. Trial by Court, Windsor County Court, December Term, 1949, Miles, J., presiding. Judgment for the plaintiff.

We find no error. Judgment affirmed.

Loren R. Pierce for the defendant.

Norman S. Case, Jr. for the plaintiff.

Present SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

OPINION

SHERBURNE

This is an action of contract to recover upon a running account between the parties. The defendant pleaded the general issue and the statute of limitations. Plaintiff filed a replication in which issue was joined on the general issue, and as to the statute of limitations that the defendant had been absent from the State of Vermont for a sufficient time to prevent the operation of the statute to-wit, for the past seven years. Defendant thereupon filed a rejoinder setting forth that ever since the alleged indebtedness was incurred, the defendant had known property within the State which could by common process be attached to-wit, a farm in Stockbridge, the existence of which farm and its ownership by the defendant was well known to the plaintiff. Plaintiff thereupon filed a surrejoinder alleging that defendant had not within the State during the period of his absence therefrom, as set forth in plaintiff's replication, unencumbered property sufficient to satisfy the indebtedness sought to be recovered, and further, that action against the defendant during the said period of his absence from the State was denied the plaintiff for a certain period, to-wit, two years, because of the service of the defendant in the Armed Forces of the United States. Thereupon the defendant filed a rebutter alleging that the said estate of the defendant, referred to in the pleadings was not encumbered in such a manner that it could not by common process of law be attached, as provided by section 1661 of the Public Laws; and as to the plaintiff's second contention, the defendant was never an inhabitant of the State of Vermont, and was not subject to the provisions of section 1660 of the Public Laws. Whereupon the plaintiff filed a surrebutter that, in its contention in its surrejoinder that it was denied the right to bring this action due to defendant's service in the Armed Forces of the United States, it did not rely upon P. L. 1660, but did rely upon Title 50, § 525 of the United States Code, 1940 edition, wherein is set forth the provisions of the Soldiers and Sailors Relief Act, Approved October 17, 1940. Trial was by court. Findings of fact were made and filed, and judgment for the plaintiff was entered thereon. The case comes here upon defendant's exceptions.

The findings show the following facts: The account was for merchandise sold and delivered to the defendant during the years 1935 to 1940, and purchased by the defendant in connection with a farm owned by him in Stockbridge. The last charge for merchandise was on December 18, 1939, and the last payment on account was on July 3, 1940, as of which date the balance due and owing to the plaintiff was $ 1,999.30. From the time of the inception of the account until the date of hearing the defendant has resided outside the State of Vermont. Findings 4, 5 and 6 read as follows:

"4. During part of that time, the defendant was in the Military Service of the United States and was overseas in such Service for the four years immediately subsequent to June 24, 1941. The writ in this cause was dated June 15, 1948; was served as an attachment by attaching the farm in Stockbridge or Bethel or both on June 28 and June 29, 1948. Pursuant to an order for service outside the State, a certified copy of the original writ and declaration was served upon the defendant at the City of New York on July 6, 1948.

"5. We are unable to find that the defendant had any known property within the State of Vermont which could by common process of law be attached which would have been of any substantial benefit to the plaintiff or sufficient to satisfy the amount due the plaintiff.

"6. We find the total amount due the plaintiff as of January 1, 1950, including interest to that date, to be three thousand eighteen dollars and ninety-four cents ($3,018.94)."

The defendant excepted to that part of finding No. 4 that, "During part of that time the defendant was in the Military Service of the United States," on the ground it was not supported by the evidence.

Sections 101, 205 and 601 of the Soldiers' and Sailors' Civil Relief Act of 1940, so far as here material, read as follows:

"Sec. 101. (1) The term "persons in military service" and the term "persons in the military service of the United States," as used in this Act, shall include the following persons and no others: All members of the Army of the United States, the United States Navy, the Marine Corps, the Coast Guard, and all officers of the Public Health detailed by proper authority for duty either with the Army or the Navy. * * *

"Sec. 205. The period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service.

"Sec. 601. (1) In any proceeding under this Act a certificate signed by The Adjutant General of the Army as to persons in the Army or in any branch of the United States service while serving pursuant to law with the Army of the United States, * * * shall when produced be prima facie evidence as to any of the following facts stated in such certificate:

That a person named has not been, or is, or has been in military service; * * *"

The only evidence about military service was a letter from the defendant to a man in Bethel, dated May 28, 1946, in which the defendant stated: "It was impossible to keep track of these matters. I went overseas 24 June 1941, and was gone four years the first time and six months the second. But I certainly got about.", and the testimony of Plaintiff's manager, received without objection, that he made inquiries about the defendant's whereabouts and was told that "he was in the service," and that he wrote the Adjutant General in Washington, and received a reply that "he was in the service" and was told where.

The defendant argues that the service may have been consular, diplomatic, Red Cross, Maritime Commission, Y. M. C. A., or any branch of the Civil Service, and that there is nothing to identify the service as military service. Because of his being overseas during World War II, and the statement from the Adjutant General, an official connected with the Army, the court could fairly infer that the service referred to was military service. Although the evidence as to the reply of the Adjutant General may have been hearsay, it was admitted without objection, and the finding could be based upon it. Montpelier v. Calais, 114 Vt. 5, 11, 39 A.2d 350. This exception is not sustained.

The rule in this State with respect to the statute of limitations is that the taking out of the writ is the commencement of an action to save the statute, if delivered for service in season to be served and returned to the court to which it is made returnable and is so served and returned; and the date of the writ is prima facie evidence that it issued at that date. Kessler v. Emmel, 115 Vt. 54, 56, 50...