Cody Chevrolet, Inc. v. Royer

• Decision Date: 06 March 1963
• Docket Number: No. 1927,1927
• Citation: 123 Vt. 389,189 A.2d 554
• Court: Vermont Supreme Court
• Parties: CODY CHEVROLET, INC. v. Philip ROYER et al.

Page 554

189 A.2d 554

123 Vt. 389

CODY CHEVROLET, INC. v. Philip ROYER et al.

No. 1927.

Supreme Court of Vermont.

March 6, 1963.

Theriault & Joslin, Montpelier (John A. Burgess, Montpelier, on the brief), for plaintiff.

Andrew G. Pepin, Newport, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SMITH, Justice.

The plaintiff brought a civil action against the defendants to recover upon a check for $2,000.00 drawn by the defendant, Mrs. Royer, to the order of Cody Chevrolet, Inc., which check was directed to the Savings Bank of Orleans, Vermont, but payment upon which was stopped by order of the defendants so that it has not been paid.

The defense of the defendants was that the check in question had been turned over to the plaintiffs through the mistake of Mrs. Royer and contrary to the terms of an agreement between the parties relative to the purchase of a new Chevrolet truck by the defendants from the plaintiff.

The case below was heard by court and judgment was given for the plaintiff in the amount of $800.00. The case is here upon plaintiff's appeal from the judgment and is here briefed entirely upon exceptions to certain of the findings of fact made by the lower court.

A better understanding of the questions presented below for determination, as well as the situation between the parties, and the questions presented here can be had by a summary of the findings of fact, unexcepted to, which were made by the lower court.

The defendants, Mr. and Mrs. Royer, were the owners of a Ford truck, bought new in the spring of 1960. This truck was damaged in a collision on Dec. 10, 1960. On Dec. 15, 1960, Mrs. Royer, together with one Rio Damarais, an employee and agent of the defendants, went to the Cody Garage in Newport, Vt. At the Cody Garage they talked with a Mr. Kilburn, an employee and salesman for plaintiff corporation. Mr. Damarais talked with Mr. Kilburn about the possibility of the Royers buying a Chevrolet truck from the plaintiff, and told him of the damaged Ford truck, which was at Barre. Mr. Kilburn then went to Barre, viewed the damaged Ford truck and returned to Newport in in time to have a further conversation with Mrs. Royer and Mr. Damarais in the afternoon of the same day.

At this time, Mr. Kilburn wrote on both a yellow sheet of paper and white card, the terms of a proposed sale or trade of a new Chevrolet truck by the plaintiff for the damaged Ford truck and a cash payment from the defendants. The terms expressed were a sales figure of $3400 for the new Chevrolet truck, for which the defendants were to give the damaged Ford truck and a cash payment of $2200.00.

At this time, Mr. Royer was in New York on business and Mrs. Royer, upon returning home, contacted him by telephone relative to the offer from the plaintiff. As a result of this phone conversation with Mr. Royer on Dec. 16th, Mr. Damarais telephoned Mr. Kilburn that Mr. Royer would enter into the sale and trade only if the cash payment was reduced to $2000.00. Later in that day, Mr. Kilburn telephoned back to Mr. Damarais and stated that the plaintiff would accept the terms of the damaged Ford truck and $2000.00. Included in the agreement was that the plaintiff would remove the body from the damaged Ford truck and affix it to the new Chevrolet.

While the Royers had notified the Farm Bureau Insurance Company, the insurance carrier on the Ford truck, of the damage to it, there had been no settlement figure agreed upon between the insurance company and the Royers for the loss, nor had this been a matter of discussion between Mrs. Royer, Damarais and Kilburn in their conversations relative to the buying of the Chevrolet truck.

On the afternoon of Dec. 19, Mrs. Royer and Damarais went to the Cody garage to pay for and obtain the new truck. She was informed by Mr. Kilburn that she should go to the insurance office and sign some papers relating to insurance. The papers she signed were release papers settling the collision claim and she was handed a check for $1200.00 in adjustment of the collision loss. Mrs. Royer and Damarais then returned to Mr. Kilburn's office and she gave Kilburn the insurance check for $1200.00, after endorsing it, and also her own check for $2000. The check for $1200 was negotiated and cashed by the plaintiff, but Mr. Royer stopped payment on the $2000.00 check and the plaintiff was unable to cash it.

This brings us to the heart of the controversy between the parties, and to those findings of fact to which the plaintiff has briefed its exception.

The plaintiff claims that the trade between the parties included not only the damaged Ford truck, and the $2000.00 cash payment to be given by the defendant for plaintiff's Chevrolet truck, but the proceeds that would otherwise go to the defendants from a settlement with their insurance carrier on the collision coverage on the damaged Ford truck.

The defendants asserted in their answer that the sales and trade between the parties was the damaged Ford truck, plus a cash payment of $2000.00 for the new Chevrolet truck, and that Mrs. Royer's act in turning over both the $1200 check and the $2000.00 check was a mistake and based upon her business ignorance. It is defendants' contention that the plaintiff was not entitled to retain the $2000.00 check, in addition to the $1200.00 already received by it through its cashing of the collision settlement check from the insurance company. The answer also alleged that the plaintiff was entitled to only $800.00 over and above the $1200.00 already received by it from the defendants, and that such sum had been tendered to it by the defendants but was refused.

In considering the plaintiff's exception to certain of the findings of fact made by the court below we are guided by certain well-defined and long-established rules.

'On an appeal to this Court for a review of findings on exceptions thereto * * * we do not weigh the evidence as its persuasive effect and the credibility of the witnesses are for the trier of the facts to determine. A finding must stand if supported by any substantial evidence, although there may be inconsistencies, or even substantial...