Capital Garage Company v. Max L. Powell

• Decision Date: 06 November 1925
• Citation: Capital Garage Company v. Max L. Powell, 131 A. 10, 99 Vt. 244 (Vt. 1925)
• Parties: CAPITAL GARAGE COMPANY v. MAX L. POWELL
• Court: Vermont Supreme Court

131 A. 10

99 Vt. 244

CAPITAL GARAGE COMPANY v. MAX L. POWELL

Supreme Court of Vermont

November 6, 1925

October Term, 1925.

ACTION OF TORT by successful plaintiff in ejectment for damages for wrongfully withholding property. Plea, general issue. Trial by jury at the March Term, 1925, Washington County, Fish, J presiding. Verdict and judgment for the plaintiff. The defendant excepted.

No question being made as to defendant's liability, the judgment is affirmed except as to damages. As to the latter question the judgment is reversed and cause remanded.

John W. Gordon and Max L. Powell for the defendant.

H C. Shurtleff for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

When this case was here before (as reported in 98 Vt. 303, 127 A. 375) we held that the measure of damages was the loss of profits, and the judgment was reversed and cause remanded because of errors of the trial court in ruling otherwise, and in rulings as to the admissibility of certain evidence bearing on the amount of damages so measured, and that there was no evidence showing actual damages suffered by the plaintiff company. Reference is made to the opinion of this Court in the case as then reported for further particulars.

On remand a new trial was had and damages were assessed according to the rule thus laid down in review, the verdict being for the plaintiff to recover $ 900 in damages. The case is now here on defendant's exceptions to rulings made below on questions of evidence bearing on the damages as now assessed.

No question was made by defendant but that the plaintiff was entitled to recover on the basis of loss of profits, for the detention of the garage in question by defendant for the period between November 22, 1922, and October 18, 1923, the real bone of contention being as to the evidence and its legitimate tendency. The deposition of Ernest F. Dillon (taken by order of court, he being ill and unable to attend court) was used by the plaintiff, some parts of it being admitted subject to defendant's exception. Therein the deponent testified that he had lived in Montpelier twenty years, was a mechanic, and had been in the garage business eighteen years or more, ending in December, 1924; that he was in that business as Dillon & Almon, and had been owner manager, head mechanic, and "most everything around there"; that he was in the Capital Garage in question from the time the Capital Garage Company moved in there until that company sold their stock to the Burnell-Faulkner Company, and while thus there was manager; that this garage is on the south side of Court Street in Montpelier, and in the rear of the Pavilion Hotel with which it is connected; that that garage drew the very best tourist trade, was equipped for winter storage, and had 65 cars of paid storage; that it had three floors connected by elevator, and could handle about that number of cars; that when he was manager of the Capital Garage Company the company employed around twelve men in the dull months and twenty to twenty-five in the summer, the number of men employed indicating the amount of work done there; that deponent worked there from November 22, 1922, to October 18, 1923, and was familiar with the garage during that period; that deponent thought the dimensions of the garage were from 110 or 120 feet deep and 60 feet wide, three floors, built of reinforced concrete and cement, fire proof, and steam heated; that there was an equipment for washing cars, a paint shop around 36 feet by 30 feet, and a varnish room of the same size, two gas tanks, a battery room having capacity for handling around 500 batteries; that there was a machine shop having lathes, drills, shapers, grinders, a blacksmith forge, a battery charging equipment "and all that"; that aside from the elevator machinery and some of the shafting, the machinery and tools were owned by the Capital Garage Company and put in there for its purpose. In connection with and attached to Dillon's deposition were fourteen certain deposit slips showing money deposited in the bank by Dillon & Almon when running this garage, the first deposit so shown being on May 8, 1919, and the last on June 2, 1919. The deposits severally ran in amount from $ 103.88 to $ 596.88, and in the aggregate were $ 2,927.46. These deposit slips were admitted in evidence subject to defendant's exception on the grounds that (1) they relate to a period too remote, (2) the mere fact that certain sums of money were deposited in the bank does not show how the business succeeded, whether there was a profit or a loss, and cannot aid the jury in determining the damages due to the plaintiff, if any, (3) no adequate foundation was laid for their admission by showing their similarity of business, and (4) there was nothing to show the amount of business done, to show the profits.

It appeared from other evidence in the case that Dillon & Almon sold out to the Burnell-Faulkner Company in November, 1919, from which time that company operated this garage until January 1, 1921.

There was no evidence tending to show the amount of business done at the garage during the period covered...