Fitzsimons v. Richardson, Twigg & Co.

• Decision Date: 21 October 1912
• Citation: 86 Vt. 229,84 A. 811
• Court: Vermont Supreme Court
• Parties: FITZSIMONS v. RICHARDSON, TWIGG & CO.

84 A. 811

86 Vt. 229

FITZSIMONS

v. RICHARDSON, TWIGG & CO.

Supreme Court of Vermont. Franklin.

Oct. 21, 1912.

Exceptions from Franklin County Court; E. L. Waterman, Judge.

Action by James E. Fitzsimons against Richardson, Twigg & Co. Judgment for defendant, and plaintiff brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

N. N. Post and Elmer Johnson, both of St. Albans, for plaintiff.

C. G. Austin & Sons, of St. Albans, for defendants.

HASELTON, J. This is general assumpsit Trial was by jury. Verdict and judgment were for the defendants. The plaintiff excepted.

The trial was at the September term, 1911. Some depositions were taken in New York in the April previous, and before the close of the March term. The plaintiff did not attend the taking of the depositions, and objected to their being read in evidence. The court overruled the objection, and the plaintiff excepted. Two grounds of objection are relied on in the plaintiff's brief. The first is: That they were taken in term time, and No. 22 of the county court rules is invoked. But this rule may be enlarged, when it ought to be, under the provisions of rule 52, and here it appears that the county court looked very fully into the situation and circumstances and admitted the depositions as matter of discretion, although the former term had not finally adjourned when they were taken. No abuse of discretion appears. It is not claimed that the statutory provisions with regard to notice were not complied with. The plaintiff refers to Bemis v. Morrill, 38 Vt. 153. But that case upholds the discretion of the court in the matter of receiving or rejecting a deposition taken in term time, although there the court in the exercise of its discretion had rejected a deposition so taken. The plaintiff also refers to Stephens v. Thompson, 28 Vt 77. There a deposition was taken Saturday evening, on notice given verbally, at half past 4 o'clock in the afternoon of the same day. The court was in session, and the case in which the deposition was taken was to come on for trial on the Monday following. The adverse party was unable to procure the attendance of his counsel at the taking of the deposition, and appeared and objected to the taking of the deposition on that account. The deposition was excluded, and it was held that it was properly rejected. On the facts that appeared there was no room for the exercise of discretion. But it is well settled that where the facts permit, a sound discretion may be exercised notwithstanding the rule, and notwithstanding the practice prior to the formal adoption of the rule. McNeish v. Hulless Oats Co., 57 Vt. 316, 323; First National Bank v. Post, 65 Vt. 222, 226, 25 Atl. 1093; Bemis v. Morrill, 38 Vt. 153; Hough v. Lawrence, 5 Vt. 299.

The second ground of objection to the reading of the depositions is that the authority taking the depositions falsely certified that the plaintiff attended. The certificate attached to each deposition followed our statutory form (P. S. 6266, form 31), and closed by saying that "the adverse party was notified and did attend." Nobody claimed that this was correct, for the certificate should have read "did not attend." But in a heading relating to, and attached to, all the depositions the authority taking them certifies that nobody appeared for the plaintiff; and, as the matter stood, the county court considered that the failure to insert the "not" in the certificates was a mere clerical error, and did not render the depositions inadmissible. In this regard we think the court was right, for it did sufficiently appear that the error was merely clerical; and, as the depositions went to the jury in their true character, the plaintiff suffered no harm by the clerical error.

At the close of the evidence, each party claimed that a verdict should be directed in his favor, and filed a motion to that end. The court made a pro forma order directing a verdict for the defendants, and, such verdict being returned, rendered a pro forma judgment thereon. To the direction of the verdict and to the judgment thereon the plaintiff excepted. The exception raises the question of whether there was evidence fairly and reasonably tending to sustain the plaintiff's claim. Comeau v. Manuel & Sons Co., 84 Vt. 501, 509, 80 Atl. 51; Bass v. Rublee, 76 Vt. 395, 57 Atl. 965.

The defendants claim that, because of the two motions, it was the duty of the court to direct a verdict one way or the other. But this claim is unsound. Where it affirmatively appears that neither party wishes to go to the jury, it is for the court to direct such a verdict as in its judgment the evidence requires. Davis v. St Albans, 42 Vt. 585; Robinson v. Larabee, 58 Vt 652, 5 Atl. 512; Taylor v. Coolidge, 64 Vt 506, 24 Atl. 656; Mascott v. First National Fire Ins. Co., 69 Vt 116, 37 Atl. 255. There is nothing novel about this practice, for the parties in civil cases can always by agreement substitute the court for the jury. But the mere fact that each party to a cause moves for a verdict in his favor does not amount to a consent that the case shall be taken from the jury. One who claims that the evidence is all his way does not waive the right to claim that, at least, some of it is his way, and that right is not affected by the fact that the other party moves that a verdict be directed in his favor. Woodsville, etc., Bank v. Rogers, 82 Vt. 468, 74 Atl. 85.

We have then to consider whether the defendants' motion for a verdict was properly granted in view of the tendency of the plaintiff's evidence. The plaintiff bargained with the defendants for a "Persian lamb coat" to be like a sample selected by the plaintiff. The defendants furnished a coat which appeared to the plaintiff to meet the requirements of the bargain, and the plaintiff accepted it, and the agreed price, $240, was paid. Whether or not the coat was like the sample was not made an issue. There was no evidence of fraud in the sale, nor was there any evidence that the coat was worthless. The plaintiff's evidence tended to show the following facts: The plaintiff's wife wore the coat two seasons, and began wearing it a third season, when it developed numerous defects. Thereupon the coat was taken to the defendants, and shown to Mr. Doolin, a member of the defendant firm, and the defects were pointed out to him. He took it and twice sent it to New York for repairs. Repairs were made, which, however, did not make the coat satisfactory. Thereupon the defendants, through Mr Doolin, took the old coat, and promised to make the plaintiff a new coat, and took measurements therefor. At the time the measurements were taken for the new coat Mr. Doolin explained that the price of fur had advanced, and it was agreed that the plaintiff should have a new coat and should pay for it $37.50 in addition to what he had already paid. This did not mean that the plaintiff was to have a new coat in addition to the old coat, but that the old coat, originally returned for repairs, was taken back by the defendants, and that the money paid therefor was to be applied towards the payment for a new coat. This was a rescission of the original sale by mutual agreement; and, this being so, it matters not that the defects in the first coat were not sooner complained of, nor that there was no fraud, nor that the first coat was like the sample, nor whether the parties could be put in their former situation, nor whether for any reason the plaintiff had the right of rescission. The parties to a trade may by mutual consent rescind it for a poor cause or for no cause. If they are satisfied, the law is satisfied. Blood v. Enos, 12 Vt. 625, 629, 36 Am. Dec. 363; Davenport v. Crowell, 79 Vt. 419, 434, 65 Atl. 557; Williston's Wald's Pollock on Contracts, 815. Though it should seem that an executory agreement to rescind an executed contract requires a consideration, the question is not here involved, for the agreement to rescind which the plaintiff's evidence tended to show did not remain executory, since the evidence tended to show that the defendants took back the old coat in pursuance of the agreement.

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