Brower v. Hill
| Decision Date | 02 December 1975 |
| Docket Number | No. 199-74,199-74 |
| Parties | Howard S. BROWER v. Reginald P. HILL and Helen B. Hill. |
| Court | Vermont Supreme Court |
Lynch, Ketcham & Foley, Middlebury, for plaintiff.
Langrock & Sperry, Middlebury, for defendants.
Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.
Plaintiff brought action for specific performance of a written contract with the defendants, to sell him specified lands in Hancock, Vermont, and for damages for breach of the contract. The damage aspect of his claim was subsequently waived. Defendants, admitting the contract, claimed fraud in its inducement, unconscionability, and unauthorized practice of law by the plaintiff. They counterclaimed for damages. They requested jury trial 'on each and every issue triable by jury.'
Although the action was clearly equitable in nature, the presiding judge evidently considered that jury determination of some questions of fact would be desirable and, without objection, convened a jury pursuant to V.R.C.P. 39(c). Much of the controversy here presented arises from the failure to make any preliminary order outlining the scope of the issues to be submitted to the jury. We cannot emphasize too strongly that in future proceedings of this somewhat unusual nature such an order should be entered, because under V.R.C.P. 39(c) the determination of the issues to be submitted to the jury and the effect to be given its verdict are largely discretionary with the court.
The record shows quite plainly that the court intended to submit for jury consideration only the issue of fraud. The charge covered this issue very clearly, and no objection to it is raised. Requests by the defendants to charge on the issues of unconscionability and illegal practice of law were denied, and these matters were not covered in the charge. On the submitted issue of fraud, the jury found for the plaintiff, and the court subsequently entered a judgment order for specific performance of the contract in question 'in accordance with the terms and conditions thereof.' This order was approved as to form prior to execution by counsel for both parties.
The contract here in question called for sale of defendants' 188 acre homestead in Hancock for $200.00 per acre, or $37,600.00, with a $300.00 down payment, a closing payment of $7,700.00, with the balance spread over six years at 5% interest. A reduction of $200.00 per acre was provided for any deficiency below 182 acres. A form contract was used, with the blanks filled in in handwriting. The form had been prepared by plaintiff, a Massachusetts attorney, who also filled in the blank.
The transaction resulted from defendants answering a blind ad for Vermont property placed in the Connecticut Valley Reporter by the plaintiff. They originally asked $40,000.00 for their property. Extensive evidence was introduced dealing with the contract negotiations, the claimed disabilities and lack of knowledge of the defendants, advice by the plaintiff about the tax advantages of spreading the payments over a period of time, an alleged representation by plaintiff that he was a 'law student' and his failure to advise defendants to get an attorney. Defendants now argue that, although the jury found no fraud, the various elements of evidence rendered the transaction unconscionable, so as to preclude specific performance. They also claim that plaintiff cannot enforce the contract because he was practicing law in Vermont without being admitted. They cit Markus & Nocka v. Goodrich, 127 Vt. 404, 250 A.2d 739 (1968), for this proposition.
Treating first the claim of illegality in the unauthorized practice of law, we do not find appellants' reasoning persuasive. In the cited case, the plaintiff, without the required statutory registration, was clearly practicing as an architect, working for others, in Vermont. Here the plaintiff was not employed by others, but was promoting his own business interests. The contract sought to be enforced is for the sale of lands, not for legal services. The 'advice' to which defendants refer was simply a part of the business negotiation; plaintiff did not purport to represent the defendants. This claim of error is without merit. An attorney admitted in another state does not deal in his own name in Vermont at the risk of being charged with illegal practice.
On the issue of unconscionability, appellants' argument seems to be that the issue should have been submitted to the jury, that it was never passed upon by the trial court, and that the absence of any notice of decision under V.R.C.P.52(a) deprived them of any opportunity to be heard on this point.
As we have already pointed out, the issues to be submitted to an advisory jury in an equitable proceeding are largely discretionary with the court. V.R.C.P. 39(c). The rule speaks in permissive rather than mandatory language, even where both parties consent to a verdict with binding effect. As above noted, although no preliminary order was issued outlining the scope of jury submission, the action of the trial court in confining its instructions to the issue of fraud make it clear that this was the issue on which it sought advisory factual determination. Appellants' argument that the plaintiff, by silence, agreed to the submission of all issues to...
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Nugent v. Shambor
...it provides that in such an instance the court may order such a trial. It may also in its discretion refuse. Brower v. Hill, 133 Vt. 599, 600, 602, 349 A.2d 901, 903, 904 (1975). To say that the parties might agree to a binding jury trial by their silence would be to deny the trial court th......
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