George C. Stanley & Sons, Inc. v. Roy

• Decision Date: 01 June 1965
• Docket Number: No. 330,330
• Citation: 211 A.2d 243,125 Vt. 136
• Parties: GEORGE C. STANLEY AND SONS, INC. v. Howard ROY and Olive Roy.
• Court: Vermont Supreme Court

Page 243

211 A.2d 243

125 Vt. 136

GEORGE C. STANLEY AND SONS, INC. v. Howard ROY and Olive Roy.

No. 330.

Supreme Court of Vermont.

June 1, 1965.

Wick, Dinse & Allen, Burlington, for plaintiff.

A. Pearley Feen, Burlington, for defendants.

Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and HILL, Superior Judge.

SMITH, Justice.

The Roys, dealers in trailers of the mobile type, wished to construct a mobile home park on lands owned by them in Swanton. The plaintiff corporation, engaged in engineering and construction operations, through its representative and engineer, George C. Stanley, had a series of consultations with the Roys relative to such proposed construction. This resulted in the plaintiff submitting to the defendants detailed specifications as well as a map of the proposed park in the form of a contract signed by the plaintiff's representative. The defendants, although requested, never signed the contract but they expressed their approval of it and authorized the plaintiff to proceed with the construction according to the plan and map submitted. The contract price, excluding any extra work that might be necessary, was $12,810.00. At the conclusion of the construction of the park in June, 1962, this amount was paid by the defendants to the plaintiff.

The subject of the controversy appealed here is charges for work performed by the plaintiff for the defendants after the completion of the contract. At the conclusion of such work, the plaintiff presented a bill to the defendants for 'extras' performed outside the contract. Upon non-payment, plaintiff brought suit and defendants answered and filed in set-off. Defendants' contention is that the extra work for which they were billed was necessitated by the failure of the plaintiff to properly perform under the contract. They further alleged that plaintiff agreed to perform such extra services without charge to the defendants in return for the defendant excusing the plaintiff from performing other work necessitated, so defendants alleged, from another breach in plaintiff's contract performance.

Trial was had in the Chittenden County Court June 24, and 25th, 1964, resulting in a jury verdict in favor of the plaintiff in the amount of $838.81. Defendants' appeal here is based upon the denial of the trial court of its motions to set aside the verdict and grant a new trial, as well as to three claimed errors in the exclusion of evidence offered by the defendants.

The first ground presented by the defendants in their motion to set aside the verdict and grant a new trial is that the verdict was not supported by the evidence.

'The motion cannot properly be granted if there is evidence fairly and reasonably tending to justify the verdict. The evidence must be taken in the light most favorable to the prevailing party and the effect of modifying evidence is to be excluded. The weight of the evidence and the credibility of the witnesses are for the jury to determine and all conflicts are to be resolved against the exceptiong party.' Whitmore v. Mutual Life Insurance Co., 122 Vt. 328, 330, 173 A.2d 584, 586.

The evidence offered by the defendants in support of their set-off was that there was incomplete and improper performance of the contract by the plaintiff in that the grading was improper so that water collected on the park at certain times of the year, that sewer lines were improperly laid in such manner that they became plugged, and that the utility poles were improperly placed upon one of the mobile home streets so as to interfere with the opening of the trailer doors.

But it is the evidence taken in the light most favorable to the plaintiff that we must consider here. Such evidence was that the contract was fully performed and in a proper manner. Plaintiff's evidence was that the defendants were aware that they would have drainage problems after the mobile home park was completed according to the plans, and that further, much of the drainage problem was caused by improper installation of a culvert by the highway department. Plaintiff's evidence also was that tenants in the mobile home court had removed the protective covering over pipes leading into the sewer system, and that children had inserted stones into such openings. In regard to the utility poles, plaintiff's evidence was that they were properly...