Everlasting Memorial Works v. Huyck Memorial Works

• Decision Date: 07 October 1969
• Docket Number: No. 1913,1913
• Citation: 128 Vt. 103,258 A.2d 845
• Parties: EVERLASTING MEMORIAL WORKS v. HUYCK MEMORIAL WORKS.
• Court: Vermont Supreme Court

Page 845

258 A.2d 845

128 Vt. 103

EVERLASTING MEMORIAL WORKS v. HUYCK MEMORIAL WORKS.

No. 1913.

Supreme Court of Vermont.

Oct. 7, 1969.

Ryan & Ryan, Montpelier, for plaintiff.

McKee & Clewley, Montpelier, for defendant.

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

SMITH, Justice.

This is an appeal from the judgment order of the Washington County Court, in favor of the defendant, dated June 26, 1967. Findings of Fact were made and plaintiff has taken exceptions to certain of such findings as well as the resultant judgment order.

Involved here is a sum of money due for certain granite monuments, tablets and markers which the plaintiff claims is due him from the defendant. The questions presented are factural to a great degree and our rule is that the lower court's findings must stand if there is any evidence fairly and reasonably tending to support them. Leno v. Meunier, 125 Vt. 30, 34, 209 A.2d 485. And we must read the evidence in support of the findings if reasonably possible, when considered as a whole. Little v. Little, 124 Vt. 178, 182, 200 A.2d 276.

There is no disagreement on certain facts in the case before us. Between November 1961 and April 1962, eight monuments were ordered from the plaintiff by Margaretville Granite Works of Margaretville, N. Y. The plaintiff is in the business of preparing and finishing monuments for erection. While this is not mentioned in the findings of fact, the evidence in the franscript before us establishes that because of the credit relations between the plaintiff and the Margaretville Granite Works, any shipments made by the plaintiff to that concern were on a C.O.D. basis.

The dispute between the parties in the case gets down to the question of whether the defendant, Huyck Monument Works, to whom the monuments were eventually shipped, assumed the debt due from the Margaretville concern to the plaintiff as its own.

Those findings of the lower court which are of vital importance the settling of this question, and to which exceptions were taken and briefed by the plaintiff, are stated below:

'3. These monuments were charged to the Margaretville account.

4. They were delivered by Clark's Transferring Service, Inc. to Huyck Monument Works. Huyck paid the freight for the shipment of the monuments, although Margaretville was billed by the defendant for the freight and for setting stones.

5. The Court cannot find that the defendant purchased Margaretville's business nor can the Court find that the defendant ever promised to pay the account of the said Margaretville Granite Works, therefore it finds for the defendant in this matter.'

The exhibits introduced in evidence in the case below show that each of the various monuments for which payment is now sought was ordered by the Margaretville Granite Works, and enclosed with each order is an apparent copy of the acknowledgment of the individual order, sent in return by the plaintiff to the Margaretville concern, setting forth the details of each monument, the date of receipt of the order, the date when the order is to be shipped and stating the terms are to be C.O.D.

It is apparent from the testimony in the transcript that the Margaretville shop was in rough financial straits at the time the orders were sent to the plaintiff, which was known to the plaintiff and accounted for the C.O.D. terms of payment. It is from this point on that the evidence in the case becomes varying and contradictory.

With the exception of a Mr. Clark, a trucker, who testified that the delivered the monuments in question to Mr. Huyck, and received payment from the Huyck firm for his trucking charges, the only other witnesses were Mr. Huyck, the defendant, and Mr. Almo Cecchini, the General Manager of the plaintiff granite concern. It was the testimony of Mr. Cecchini that he was informed by Mr. Munroe, of the Margaretville monument company, that he had sold his business to Mr. Huyck and that Mr. Huyck would assume the debt for the various monuments when the were delivered. It was also Mr. Cecchini's testimony that he confirmed this information with Mr. Huyck, both on the telephone and by a personal visit to him, in which Mr. Huyck also confirmed that he had taken over the former business of Margaretville and would pay for the monuments when delivered to him.

The testimony of Mr. Huyck was that he did not take over the Margaretville business, but did receive part of their equipment from Mr. Munroe in partial payment of a debt owned by Margaretville to him. His explanation was that he was what is known in the monument trade as a 'setter', that is, one who places the monuments in the particular place designated by the monument dealer. He offered evidence that he had on previous times paid the freight bill to the trucker when the monuments were delivered to the site where they were to be set, although not assuming in any way to pay for the actual charges for the monuments. He denied ever informing Mr. Cecchini that he would pay for the monuments himself, and also denied that he was paid by those persons who had actually first ordered the monuments from the Margaretville Works.

The appellant first contends in its brief that the Statute of Frauds is not a valid defense in this case. However, such a defense was not pleaded by the defendant as required by 12 V.S.A. Sec. 1022, and there is admittedly no agreement in writing between the plaintiff and Huyck by which the latter assumed to pay the debt due the plaintiff from the Margaretville Granite Works. We find no argument by the defendant that he is relying on the Statute of Frauds as a defense. What apparently the plaintiff does claim is that there was a novation effected. It is his contention that the uncontradicted evidence clearly establishes that the contract between Everlasting and Margaretville was extinguished by agreement between Everlasting, Margaretville and Huyck, that Huyck was accepted in the place of Margaretville, and that Huyck received the benefits which might have flowed to Margaretville under the contract, and that Huyck must properly be regarded as having assumed the obligations formerly assumed by Margaretville. In support of this theory he cites us the case of H. P. Hood v. Heins et al., 124 Vt. 331, 205 A.2d 561.

In that case, written by Chief Justice Holden, it was stated:

'To constitute a novation there must be a valid existing contract which is extinguished by mutual agreement between the original obligors and obligees and the new party. It is the mutual understanding that the stranger is accepted in place of the first obligor...