Elsie Clifford Verfenstein v. Louise Deiglmayr

• Decision Date: 02 January 1940
• Citation: 10 A.2d 2,111 Vt. 87
• Parties: ELSIE CLIFFORD VERFENSTEIN v. LOUISE DEIGLMAYR
• Court: Vermont Supreme Court

10 A.2d 2

111 Vt. 87

ELSIE CLIFFORD VERFENSTEIN v. LOUISE DEIGLMAYR

Supreme Court of Vermont

January 2, 1940

November Term, 1939.

Findings of Fact.---1. Conditions of Liability within General Issue.---2. Duty of Trier to Weigh Conflicting Evidence.---3. Fraud Immaterial if Purchaser not Liable.

1. A finding of fact that defendant was to pay for business out of the profits of the operation thereof is within the scope of the general issue pleaded to an action for the unpaid balance.

2. Where there is conflicting evidence it is the duty of the court to weigh it and determine the facts.

3. The failure to find that a vendor was not guilty of fraud in making a sale is harmless and no error is committed where other findings show that no further sum is due upon the purchase price sought to be recovered.

COMMON COUNTS. Plea, general issue with special plea of fraud. Trial by court, December Term, 1938, Addison County Court, Hughes J., presiding. Judgment for the defendant on the findings.

Judgment affirmed.

Goddard & Kennedy for the plaintiff.

E B. Cornwall and John T. Conley for defendant.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

In this action plaintiff seeks to recover an unpaid balance claimed to be due from defendant as a part of the purchase price for a tea room business and equipment sold by plaintiff to defendant in the summer of 1936. Declaration is in the common counts. Plea, general issue with a special plea of fraud. Trial by court and upon the findings filed defendant had judgment. The case is here upon plaintiff's exceptions.

Plaintiff's first exception is to a portion of finding No. 6 which finding is as follows:

"The plaintiff's evidence tended to show that one thousand dollars was to be paid at once and the balance of the purchase price amounting to $ 1500.00 was to be paid at the rate of $ 50.00 a month beginning after the College opened in September but the defendant's evidence was that one thousand dollars ($ 1000) was to be paid at once and that the balance of the purchase price was to be paid at the rate of $ 100 per month out of the profits of the business, and the Court finds that the defendant understood and agreed at the time she purchased the business to pay the last $ 1500.00 of the purchase price out of the profits of the business."

Plaintiff's first exception is taken to the last five lines of the above quoted finding and is upon the grounds that such part of the findings is outside the issues made by the pleadings and is unwarranted by the pleadings and the evidence.

This contention is unsound. The findings excepted to when read in connection with finding No. 7 which states that "the defendant has not been able to make any profits out of the business whatsoever since she purchased it," show that plaintiff's alleged cause of action has never...