G. C. Berkley v. Burlington Cadillac Company, Inc

• Decision Date: 09 November 1923
• Parties: G. C. BERKLEY v. BURLINGTON CADILLAC COMPANY, INC
• Court: Vermont Supreme Court

122 A. 665

97 Vt. 260

G. C. BERKLEY v. BURLINGTON CADILLAC COMPANY, INC

Supreme Court of Vermont

November 9, 1923

January Term, 1923.

ACTION OF CONTRACT for breach of warranty. Plea, the general issue. Trial by jury at the March Term, 1923, Franklin County Chase, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Reversed and remanded.

M G. Leary and Watson & McFeeters for the defendant.

H Elmer Wheeler, M. H. Alexander, and Fred L. Webster for the plaintiff.

Present: POWERS, TAYLOR, SLACK, and BUTLER, JJ., and FISH, Super. J.

OPINION

TAYLOR

The suit grows out of the sale of an automobile by the defendant to the plaintiff. The complaint contains an original count and two amended counts. The parties disagreed as to the form of action, the plaintiff insisting that the action sounded in tort for deceit, and the defendant claiming otherwise. At the close of plaintiff's evidence the defendant moved for a directed verdict on the ground, in substance, that the plaintiff had failed to allege and prove actionable fraud. The court, on being informed that the defendant did not rest, overruled the motion, to which the defendant excepted. Thereupon, the defendant requested that the plaintiff elect which of the three counts he relied upon. Plaintiff's counsel stated that they did not rely upon the original count,--that they had so notified defendant's counsel earlier in the trial,--and they had leave to "eliminate" it. Respecting the amended counts their claim was that they conformed to the provisions of the Practice Act, in that they set forth the facts on which the plaintiff relied as a basis of recovery in the manner therein required, regardless of their being characterized as counts in tort or otherwise; and they asked to be relieved of any embarrassment by reason of having said, in response to inquiries by defendant's counsel, that they were actions in tort. They insisted upon the right to go to the jury upon both counts, but stated that if they were required to elect they should elect to stand upon the second amended count, "be that whatever it is." The court held that the plaintiff should elect which of the two amended counts he relied upon and treated what had been said as an election to stand upon the second of such counts, to which the plaintiff was allowed an exception. The defendant then moved for a directed verdict, in view of the plaintiff's claim respecting the form of action set out in the count relied upon, on the ground, in substance, that actionable fraud was not therein alleged and that the plaintiff had failed to establish the several necessary elements of such an action. The motion was overruled and the defendant had an exception. The defendant also moved to dismiss the action because the plaintiff refused to elect and on the ground of misjoinder of counts. This motion was overruled and the defendant saved an exception. During the discussion the presiding judge remarked that the court was trying to act under the law which provides that if there is a misjoinder and the fault is pointed out, it shall be corrected under the court's direction. At the close of all the evidence the several motions were renewed, the court made the same rulings and allowed the same exceptions. An additional motion for a directed verdict was made, but it does not require separate attention as it was in substance merely a restatement of the grounds of the earlier motion.

It seems to have been admitted by the defendant, at least tacitly, that the count left for consideration charged a breach of warranty. The court so charged the jury and the defendant took no exception. As appears from the charge, the evidence was undisputed that the defendant warranted the car to be new, all right in every respect, and free from any defects whatsoever. The defendant's evidence tended to show that the automobile was as warranted. No claim was made but that the car was new, but the plaintiff's evidence tended to show a breach of the warranty in the other respects named. It was upon this issue alone that the case was submitted to the jury under instructions satisfactory to the defendant. The verdict was for the plaintiff. The defendant argues in support of its motion for a directed verdict that since the plaintiff "persistently relied solely upon the right to recover in tort, failing to allege in the last count of the amended declaration any fraud or deceit in the sale of the particular car received," he had no right to recover in tort. It is urged that it was error for the court to correct the fault in the pleadings and to limit the recovery to the single count against the objection of the plaintiff. Indeed, the defendant insists that the defect, though pointed out, was never corrected, owing to the plaintiff's refusal to elect. Wilson Bros. Garage v. Larrow, 90 Vt. 413, 98 A. 902, is relied upon, but that case does not support the defendant's position. As seen, the plaintiff was not insisting upon the right to recover tort-wise, although his counsel maintained that both of the amended counts were in tort; but was claiming the right to recover on both counts, which were said to be for the same cause of action, however they were characterized. The court evidently regarded the first amended count as a count in tort, and did only what it had a right to do when in effect it sustained the defendant's motion for an election of counts. This was so whether the fault in pleading was a misjoinder of counts or the joinder of a good with a defective count for the same cause of action. G. L. 1798. The defendant relies upon Anderson v. Nichols, 93 Vt. 262, 107 A. 116, in support of the proposition that the court was without right to act against plaintiff's objection; but that case holds only that it was not error for the court to neglect to act in similar circumstances.

The overruling of the motion to dismiss the action for a misjoinder cannot be made the basis of a reversal. The motion served to point out the claimed fault in the pleading, but with the result that the fault was corrected, which under the Practice Act defeated the motion. G. L. 1798. The motion for a directed verdict was also properly overruled. It did not challenge the sufficiency of the evidence to sustain the allegations of the count under consideration, but in this respect was directed to a hypothetical count such as would withstand the test of a good count in tort. It was not claimed below, nor is it claimed here, that the count did not state a cause of action, but the claim was that it was insufficient as a count for actionable fraud. It matters little that the plaintiff misnamed the cause of action. A verdict for the defendant could not properly be directed if the count stated a cause of action and there was evidence to support it. Lewis v. Crane, 78 Vt. 216, 228, 62 A. 60. So far as the motion was directed to the sufficiency of the complaint, the exception to the refusal of the court to direct a verdict is unavailing. State v. Perkins, 88 Vt. 121, 92 A. 1. The defendant contends that the plaintiff elected to proceed in tort, and must stand by his election, but the doctrine of election of remedies has no application. The most that can be claimed is a misjoinder of a defective count in tort with a good count in contract under the mistaken notion that they were both counts in tort.

One of plaintiff's witnesses had testified in direct examination respecting the generator that it generates electricity for keeping the storage battery charged, furnishing ignition, lights, etc. He was then asked, "If the generator is not operating properly and is not of sufficient size, it will not supply the storage battery with sufficient electricity, is that right?" Subject to the objection that the question was leading and immaterial, the witness was permitted to answer, "Yes. Well, of course it won't keep the battery up if that happens to be the case. Of course, it won't keep the storage battery charged if that happens to be the case." The defendant relies upon an exception to the action of the court in overruling its objection. The question was leading in form, but the objection in that respect was addressed to the discretion of the trial court, and to that extent its ruling is not reviewable. Jenness v. Simpson, 84 Vt. 127, 141, 78 A. 886. The ground of the objection as to the materiality of the question was that there was no allegation "affecting the matter to which it refers." It would be enough to say that want of the allegation, if essential, does not appear affirmatively. We are left to search the record for error, which we do not do. But it is clear that the answer could not possibly have harmed the defendant. The question called for the assertion of a self-evident fact. The objection now urged respecting opinion evidence was not made below and is not considered.

It fairly appears that the original and the first amended counts were framed as counts charging fraud by false representations. The complaint was not demurred to and no action was taken to have impertinent allegations stricken out. Under exception the plaintiff was permitted to testify respecting the condition of an automobile delivered to the defendant in part payment of the car in question; also concerning representations respecting the comparative value of the two cars as a trading proposition, coupled with a promise (which was not kept) to treat the new car as of a certain value if he wanted to trade with the defendant at any time in the future; and likewise concerning an agreement to renew a note given in part payment and the defendant's refusal to keep the agreement when the note fell due. This line of evidence was objected to as immaterial, and as not affording the...