Fancher v. Benson, No. 89-020

Docket NºNo. 89-020
Citation580 A.2d 51, 154 Vt. 583
Case DateJuly 13, 1990
CourtUnited States State Supreme Court of Vermont

Page 51

580 A.2d 51
154 Vt. 583
Christene L. FANCHER
v.
Alta BENSON and Jane Savoie.
No. 89-020.
Supreme Court of Vermont.
July 13, 1990.

Page 52

[154 Vt. 584] Peardon Donaghy, Montpelier, for plaintiff-appellee.

Peter S. Cullen of Theriault & Joslin, P.C., Montpelier, for defendants-appellants.

Before [154 Vt. 583] ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

[154 Vt. 584] MORSE, Justice.

Defendants appeal from a $25,500 jury verdict against them for violating Vermont's Consumer Fraud Act, 9 V.S.A. § 2461(b), by selling plaintiff a horse which had a weak heart. We affirm and hold that a horse is covered under the Act's definition of "goods," that the instructions on agency were proper, that the evidence supports the verdict, and that the trial court properly permitted the issue of punitive damages to go to the jury.

In October 1985, Promises to Keep ("Promise"), an eight-year-old Oldenburg mare trained for dressage, 1 underwent a twenty-two day hospitalization at the University of Georgia College of Veterinary Medicine (UGA) for a heart problem described in a UGA report of November 27, 1986, as cardiopulmonary disease due to the presence of ventricular tachycardia. The report further stated that "[n]o structural abnormalities were identified, so it was determined the mare was not yet in congestive heart failure." It indicated that the horse was successfully treated but that a follow-up examination and "three months of pasture rest" would need to take place. It concluded:

A few cases of ventricular tachycardia have been identified and successfully treated.... The animals who had no [154 Vt. 585] underlying structural heart defects or evidence of congestive heart failure responded well to therapy, and returned to their normal performance levels.... Promise has responded well to therapy to date, so we feel her prognosis for return to performance is good.

In January 1986, defendant Alta Benson of Georgia employed defendant Jane Savoie of Richmond, Vermont, as her agent to sell Promise, and arranged for the mare to be transported from Georgia to Vermont. Both defendants signed a letter of agreement stating,

You will ... show Promise with the aim of selling her at a time when the most profit can be realized.... In what I hope is the unlikely event that Promise has a recurrence of her ventricular tachycardia, we are agreed that she is to be sent to the nearest state veterinary school to be put down ... and expenses will be shared by us....

I am enclosing herewith copies of Promise's medical reports from the University of Georgia....

Page 53

Later in January, Barbara Hill contacted defendant Savoie looking for a horse suitable for plaintiff. Savoie told Hill that she had a horse that was not yet really "fit" due to a viral infection but that it would be ready in about a month.

On March 10, 1986, plaintiff, Hill and Hill's partner, Alix Nelson, visited the horse and were told by Savoie that Promise had been ill with the flu. She did not say that the horse had suffered from any episode of heart failure, but did say that the UGA had prepared a report. It was disputed whether the report was available for inspection then. When Nelson inquired about a shaved patch of skin on the horse that she recognized as the result of an EKG, Savoie explained that the EKG was given as a matter of course during the treatment of the respiratory problem and that there was nothing wrong with the horse's heart.

Plaintiff thereafter arranged for a prepurchase physical examination by a veterinarian, Dr. Barbara LeClair. Because there was some concern about swelling on the horse's legs, LeClair was asked to pay specific attention to that potential problem. On March 12, 1986, when LeClair arrived at the stable to perform the examination, Savoie gave her the UGA report. [154 Vt. 586] Savoie testified that, "[a]s [Dr. LeClair] was reading through the symptoms that Promise had shown, her response was, 'Wow'." LeClair testified that Savoie assured her that she had "talked to [plaintiff] about this report," and when asked, "did Jane [Savoie]...

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6 practice notes
  • Repucci v. Lake Champagne Campground, Inc., No. 2:01-CV-287.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • April 25, 2002
    ...Vt. at 598, 547 A.2d 1333 (real estate broker engaged in residential real estate sales was a "seller" under the VCFA); Fancher v. Benson, 154 Vt. 583, 585-586, 580 A.2d 51, 52-53 (1990) (agent who made misrepresentations about health on behalf of the owner of a horse liable under Even const......
  • Carter v. Gugliuzzi, No. 97-094
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 22, 1998
    ...we apply the Act liberally to accomplish its purposes. See State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993); Fancher v. Benson, 154 Vt. 583, 586, 580 A.2d 51, 53 (1990). In construing the Act, we look to the interpretations accorded similar terms and provisions of the Federal Tra......
  • State v. Morse, No. 18-263
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 30, 2019
    ...counsel's having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that plaintif......
  • State v. Morse, No. 2018-263
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 30, 2019
    ...counsel's having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-Page 5 88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that p......
  • Request a trial to view additional results
6 cases
  • Repucci v. Lake Champagne Campground, Inc., No. 2:01-CV-287.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • April 25, 2002
    ...Vt. at 598, 547 A.2d 1333 (real estate broker engaged in residential real estate sales was a "seller" under the VCFA); Fancher v. Benson, 154 Vt. 583, 585-586, 580 A.2d 51, 52-53 (1990) (agent who made misrepresentations about health on behalf of the owner of a horse liable under Even const......
  • Carter v. Gugliuzzi, No. 97-094
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 22, 1998
    ...we apply the Act liberally to accomplish its purposes. See State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993); Fancher v. Benson, 154 Vt. 583, 586, 580 A.2d 51, 53 (1990). In construing the Act, we look to the interpretations accorded similar terms and provisions of the Federal Tra......
  • State v. Morse, No. 18-263
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 30, 2019
    ...counsel's having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that plaintif......
  • State v. Morse, No. 2018-263
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 30, 2019
    ...counsel's having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-Page 5 88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that p......
  • Request a trial to view additional results

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