French v. Whelden

• Decision Date: 20 November 1916
• Citation: French v. Whelden, 91 Vt. 64, 99 A. 232 (Vt. 1916)
• Parties: FRENCH v. WHELDEN.
• Court: Vermont Supreme Court

99 A. 232

91 Vt. 64

FRENCH

v. WHELDEN.

Supreme Court of Vermont. Windsor.

Nov. 20, 1916.

Exceptions from Windsor County Court; Frank L. Fish, Judge.

Assumpsit by Valeria B. French against Perley E. Whelden. Judgment for plaintiff, and defendant excepted. Reversed and remanded.

Argued before MUNSON, C. J., and HASELTON, POWERS, and TAYLOR, JJ.

C. R. Emery, for plaintiff. Julias A. Willcox, of Ludlow, for defendant.

TAYLOR, J. This is an action of general assumpsit brought to the county court on defendant's appeal. Plaintiff seeks to recover a balance claimed to be due on a contract for pulpwood delivered to defendant in 1910. Defendant filed a declaration in offset, and there was a trial by jury, with a verdict for plaintiff for $97.62. After verdict and before judgment defendant moved to set aside the verdict on the grounds that it was: (1) Against the weight of evidence: (2) contrary to the evidence; and (3) contrary to the court's instructions. The motion was overruled, and defendant excepted. The transcript of the testimony and the court's charge is referred to and made controlling for all purposes of the exception.

The only litigated questions related to the quantity of wood and the price per cord delivered on board the cars at Proctorsville. By the uncontradicted evidence the quantity of wood was to be determined by the measure at the mills to which defendant should sell the wood. The court instructed the jury that the contract fixed the mill measure as the standard for determining the quantity. Plaintiff offered no evidence of the measure allowed the defendant at the mills, and her evidence tended to show that she was unable to get the mill returns from the defendant. She was permitted to show the number of cords of wood delivered to defendant according to her own measure. Defendant's evidence tended to show the mill measure and that it was somewhat less than that claimed by the plaintiff. He introduced in evidence the original mill returns showing in detail the quantity of wood in each car loaded by plaintiff, and testified that he gave plaintiff's agent a statement of the quantity and showed him the returns. As the evidence stood there was no dispute regarding the quantity of wood for which plaintiff should be paid. The contract fixed the mill measure as the basis of payment, and plaintiff had the burden of establishing the quantity by that standard.

There was a conflict in the testimony as to the contract price per cord for the different kinds of wood. Defendant's evidence tended to show that the agreed price was $7 per cord for peeled spruce and $5.50 per cord for peeled poplar and unpeeled or rough spruce, except that as to the last carload of rough spruce the price was increased to $5.75 per cord in order to insure delivery. Plaintiff's evidence tended to show that the agreed price for rough spruce was $6 per cord and for peeled poplar $5.75 per cord. As to the peeled spruce, plaintiff's agent, who was the only witness for plaintiff on the subject, testified in one answer that defendant said he would give $7 per cord and in another that he was to give $7 per cord for the spruce (referring to peeled spruce). He testified further that he (witness) said it was not enough, to which defendant replied, "That is about all I can afford to pay, but if any of the mills allow me more I will pay you more for the peeled spruce;" that he saw another wood buyer who said he would give more; that he showed defendant a letter from this man; and that, after reading the letter defendant said, "I can pay as much as anybody." The letter was not produced, and that was all the evidence in the case relating to the matter. In her specification plaintiff charged for the number of cords shown by her measurement and for the peeled spruce at $7.50 per cord. The verdict was for the entire amount claimed by plaintiff.

Defendant does not contend that this court can review the action of the trial court on the first ground of the motion. He recognizes the well-established rule that a motion to set aside a verdict as against the weight of the evidence is addressed to the discretion of the trial court, and that, when there is nothing to show that such...