Franklin County Realty Corp. v. Cunnius, 597
| Decision Date | 01 April 1969 |
| Docket Number | No. 597,597 |
| Parties | FRANKLIN COUNTY REALTY CORPORATION v. George CUNNIUS and Suzanne Cunnius. |
| Court | Vermont Supreme Court |
Kissane & Heald, St. Albans, for plaintiff.
Webster & Tyler, St. Albans, for defendants.
Before HOLDEN, C. J., SHANGRAW, BARNEY and KEYSER, JJ., and HILL, Superior Judge.
The plaintiff realty company sold a dwelling house to the defendants on January 9, 1965. The property was located in Montgomery. The purchase price of $12,500 was financed by a first mortgage which the plaintiff negotiated with the Burlington Savings Bank in the amount of $9,300. The defendants gave their promissory note for $3,200, payable to the plaintiff at Montgomery Center, to complete the purchase. The instrument provided for interest at six percent and reasonable attorneys' fees in the event collection is required. The action was brought to recover the balance due on that obligation.
The defendants answered that they were not indebted to the plaintiff for reasons asserted in their plea in set-off. Their claim against the note in suit alleges faulty and inadequate construction of the dwelling house, specifying some twenty defects which the plaintiff promised, but failed, to correct. The defendants seek to recover damage in the amount of $10,500.
The cause was tried by jury. The court instructed the jury that
'(i)t is undisputed that the defendants did in fact execute a note dated as of January 1, 1965 in the amount of Thirty-two hundred dollars ($3,200.00), and it is further undisputed that the defendants have not as of this time paid any interest on said note or any part of the principal.'
The presiding judge reminded the jury that the parties had stipulated concerning prevailing rates for attorneys in collection suits. The charge continued-:
'Therefore, in view of the state of the evidence as far as the plaintiff's claim is concerned, you are instructed and directed that you must find for the plaintiff as far as liability is concerned, that the amount due is thirty-two hundred dollars ($3,200.00) principal, plus interest at six per cent from January 1, 1965 to date, plus whatever amount you find from the evidence would be a reasonable solicitor's or attorney's fee on collections.
The jury was instructed fully concerning the opposing claims of both parties in relation to the set-off, pointing out that the plaintiff denied the claim and contended the house was sold 'as is,' without agreement to repair. The court concluded with these specific instructions concerning four alternative verdicts:
'If you find for the plaintiff, Franklin Realty, on all issues, in other words, a total on the note, which I have already directed you to do, also as to the claim in set-off; in other words, that there are no damages therein, no agreement, your foreman will sign the form entitled 'Plaintiff's Verdict' and insert in the blank provided therefor the amount of dollars to which you find is due by reason of default on the note.
'If you find for the plaintiff, Franklin Realty, on the issue of the note, as I have directed you to do, but also find for the defendants, Cunnius, on the issue of the claim in set-off, but find that the damages connected with the note are greater than what you find the damages due to the defendants on the claim in set-off, then you foreman will sign the plaintiff's verdict and insert in the blank provided therefor the amount of dollars difference between the amount found for the defendants and the amount found for the plaintiff. In other words, in this instance, the plaintiff is only entitled to recover the excess.
'If you find that the amount of the plaintiff's damages on the note equals the amount of damages you find for the defendants on the plea in set-off, your foreman will sign the form entitled 'Defendants' Verdict'. There is no blank to be filled out in this particular form.
'If you find that the damages for the defendants, Cunnius, in the claim in set-off exceeds the amount of damages for the plaintiff, Franklin Realty Corporation, on the note, then your foreman will sign the form at the bottom entitled 'Defendants' Verdict' and will insert in the blank provided therefor the amount in dollars which the defendants' damages exceeds the plaintiff's damage.'
Before finally submitting the case, the court called upon counsel for objections and suggestions for correction. The plaintiff's attorney responded:
About three and a half hours later and without request for further instructions, the jury returned its written verdict: 'In this cause, the jury on their oath say the defendants are not liable in manner and form as the plaintiff has alleged in his complaint.' The verdict was received and the jury discharged.
Some days later the plaintiff presented the court with a motion to set the verdict aside and order a new trial. It contends the result reached by the jury is inconsistent with the verdict which the court directed as to the plaintiff's claim on the note in suit. The motion was denied and judgment of no liability was entered in favor of the defendant. In this appeal by the plaintiff, the error claimed is confined to the court's refusal to...
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