Conn Boston Co. v. E. T. Griswold

• Decision Date: 04 November 1931
• Citation: 157 A. 57,104 Vt. 89
• Parties: CONN BOSTON CO. v. E. T. GRISWOLD
• Court: Vermont Supreme Court

157 A. 57

104 Vt. 89

CONN BOSTON CO. v. E. T. GRISWOLD

Supreme Court of Vermont

November 4, 1931

October Term, 1931.

Effect of Failure of Record To Show Exception to Judgment---Sales---Evidence Relating to Issues Made by Pleadings---Trial---Offer of Evidence---Construction of Record on Review---Necessity That Error Appear To Secure Reversal---Test as to Correctness of Exclusion of Evidence---Principal and Agent---Declarations of Supposed Agent---Harmless Error---Limitation of Evidence as to Damages to Specifications Filed---Effect of Failure To Except to Findings in Attempt To Raise Question Whether Findings Supported by Evidence---Premature Motion for Directed Verdict---Conclusiveness of Findings to Which No Exception Is Taken.

1. That record did not show that exception was taken to judgment, did not preclude Supreme Court from considering and disposing of trial questions properly raised and brought before it by bill of exceptions.

2. Evidence that defendant failed to comply with terms of contract for sale of musical instruments, and that contract was cancelled by plaintiff for that reason, held within issues, where defendant filed complaint in set-off alleging that he was damaged by loss of profits because plaintiff wrongfully and fraudulently cancelled and withdrew from defendant exclusive agency for sale of its musical instruments and appointed other agencies for sale thereof.

3. To be available, offer of evidence must be specific enough to make its relevancy appear to court.

4. Construction of record on review is always against excepting party.

5. Supreme Court will not search transcript to discover reversible error.

6. Correctness of exclusion of evidence must be tested by state of case at time offer was made.

7. Agency cannot be shown by mere acts and declarations of supposed agent made out of court.

8. In ACTION OF CONTRACT for breach of contract for sale of musical instruments, exclusion of letter from manufacturer of instruments to plaintiff, containing declarations that plaintiff was direct factory branch of manufacturer, held without error, there being no competent evidence of agency in case.

9. In such action, exclusion of letter to show writer's agency for plaintiff, if error, held harmless, where plaintiff had already conceded that writer was its manager and had authority to bind it by agreement with defendant.

10. In such action, exclusion of part of letter stating that writer had taken over managership of "this branch" of certain company, held without error, offer thereof being merely attempt to establish agency by out of court declarations of alleged agent.

11. Where no exception was taken to finding that there was no liability for breach of contract on part of plaintiff, as claimed by defendant in his plea in set-off ruling which limited scope of evidence as to defendant's damages to claimed loss of profits from sales specifically scheduled in his specifications, held harmless, matter of defendant's damages not being in case.

12. Where no amendment, nor suggestion of amendment, to defendant's specifications was made, court correctly restricted evidence relating to defendant's damages to claimed loss of profits from sales specifically scheduled in his specifications in set-off.

13. Where findings were unexcepted to, question whether findings made were supported by evidence was not presented for consideration.

14. Motion by defendant at close of all evidence for judgment for amount of his specification in set-off, on ground that plaintiff was a foreign corporation doing business within State, and that it had not proved that it had received certificate therefor, and was prohibited by G. L. 5009 from maintaining action, held properly denied as premature, where pleadings and evidence presented controverted questions of fact, and nature of case required court to find and state facts.

15. Where case is tried by court and facts found, and findings stand unchallenged by exception, case in Supreme Court is controlled by facts found.

16. Defendant taking no exception to failure of court to find as requested, nor to findings as filed, no question relating thereto is saved for review.

ACTION OF CONTRACT for breach of contract for sale of musical instruments. Plea, general denial, defendant also filing complaint in set-off, with specifications, on which plaintiff joined issue by general denial. Trial by court at the June Term, 1930, Bennington County, Bicknell, J., presiding. Judgment for plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Edward H. Holden (Francis E. Morrissey and Norton Barber of counsel) for the defendant.

The pleadings in this case consisting of plaintiff's complaint of the common counts with specifications, answer constituting general denial, and declaration by defendant in set-off with specifications, it was error to admit evidence as to why plaintiff terminated contract. A general denial puts in issue only those facts which plaintiff (defendant as to his counter-claim being in same position as plaintiff) must aver and prove in order to establish a prima facie case, and does not authorize introduction of evidence in support of any new matter. Mark et al. v. Stuart-Howland Co., 226 Mass. 35, 2 A. L. R. 678; Kellogg v. New Britain, 62 Conn. 232 24 A. 996; Snow v. Chatfield, 11 Gray (Mass.) 12; Wheeler v. Lawson, 103 N.Y. 40, 8 N.E. 360; 49 C. J 800, and cases cited.

All new matter, such as an affirmative defense, matters in justification or in confession or avoidance, must be specially pleaded, and, if not so pleaded, they are outside the issues and not admissible in evidence. Howard National Bank v. Wilson, 96 Vt. 438, 49 C. J. 801, 21 R. C. L. 567--571; Seaver et al. v. Lang, 92 Vt. 501; Congdon v. Torrey, 95 Vt. 38; Berkley v. Burlington Cadillac Co., 97 Vt. 260; Powell v. Rockwell, 97 Vt. 528.

While a party is bound by his specification, where other sales of same kind as those actually specified, the persons unknown at that time, were claimed in specification, a party should be allowed to put in evidence of such other sales as would not cause surprise, the purpose of specification being to prevent surprise. Greenwood v. Smith, 45 Vt. 37; Bates v. Quinn, 56 Vt. 49; McKane v. Gordon & Hoar, 85 Vt. 253.

General rule is, that measure of damages for the breach of a contract giving an agent an exclusive selling territory, where principal invades such territory, or revokes the contract of agency, is the amount of profits, commissions, or discounts of which the agent is deprived by the action of the principal. 8 R. C. L. 649; 21 R. C. L. 836; L. R. A. 1916B, 868; Randall v. Peerless Motor Car Co., 212 Mass. 352; Horlweg v. Schaefer B. Co., 197 F. 689; Meuller v. Bethesda M. S. Co., 88 Mich. 390; Orester v. Dayton Rubber Mfg. Co., 228 N.Y. 134; Pittsburg Gage Co. v. Ashton Valve Co., 184 Pa. 36; White Co. v. Farley, 219 Ky. 66, 32 A. L. R. 239.

When no time is fixed for the duration of an exclusive agency, the law applies a reasonable time. Erskine v. Chevrolet, 185 N.C. 479, 32 A. L. R. 196.

The things which plaintiff did in Vermont constituted "doing business" therein; and, not having a certificate of authority therefor as required by G. L. 4995, it could not maintain an action in this State upon a contract made by it therein while acting without lawful authority; and, the statute expressly prohibiting an act, a contract in violation of its provisions is void. G. L. 5009; Kinnear & Gager Mfg. Co. v. Miner, 89 Vt. 572; Lycoming Fire Ins. Co. v. Wright & Son, 55 Vt. 526; Harris v. Runnels, 12 Howard, 79.

When the right of a contracting party to make a contract is dependent upon his compliance with statutory requirements, in a state which prescribes duties to be performed by such party as a condition precedent to his right to make a contract, he must aver and prove a compliance with such requirements. Lycoming Fire Ins. Co. v. Wright & Son, supra; Sullivan v. Vernon, 121 Ala. 393; Tabor v. Interstate Bldg., etc., 91 Tex. 92.

A defense for failure to comply with the statute or to allege and prove compliance therewith is available under the general issue, which allows any defense that tends to show no such cause of action legally existed. Malthie v. Sparton, 40 Vt. 286; Thrall v. Wright, 38 Vt. 484; Limerick Bank v. Adams, 70 Vt. 132; Blaisdell v. Davis, 72 Vt. 295. Cebra Q. Graves for the plaintiff.

The record fails to show that defendant excepted to the findings of the chancellor, in the absence of which exceptions to rulings of the chancellor as to admission of evidence are not available, even though judgment were excepted to, and Supreme Court is bound by findings and cannot supplement them by scanning transcript. Cutler Co. v. Barber, 93 Vt. 468; Morgan v. Gould et al., 96 Vt. 275; Powell v. Merrill, 92 Vt. at page 130.

Where incapacity of plaintiff to sue is not apparent upon face of declaration, it must be taken advantage of by some appropriate dilatory procedure or plea in bar, and cannot be availed of under general issue. Underhill v. Rutland R. R. Co., 90 Vt. 462; Noyes et al. v. Pierce, 97 Vt. 188; Howard National Bank v. Wilson and Trustee, 96 Vt. 438.

Although contract for sale of goods was made in Vermont by a corporation unauthorized to do business therein under G. L 4995, by reason of having failed to obtain a certificate of authority therefor, where goods were to be shipped, and were shipped to buyer's place of business in this State from another state, shipment was in interstate commerce, and seller had the right under the federal Constitution to maintain an action for the purchase price, which could not be taken away, and which rendered inapplicable G. L. 5009, denying corporations unauthorized to do...