Granite City Cooperative Creamery Assoc'n Inc. v. B And K Cheese Company, Inc
| Decision Date | 05 January 1949 |
| Parties | GRANITE CITY COOPERATIVE CREAMERY ASSOC'N INC. v. B AND K CHEESE COMPANY, INC |
| Court | Vermont Supreme Court |
November Term, 1948.
Trial.
1. Where parties enter into a stipulation, it remains binding upon them even though some term of the stipulation proves less satisfactory to one of the parties than he expected when the agreement was made.
2. A concession made by counsel on trial, absolutely and without qualification, for the express purpose of dispensing with formal proof of a fact in issue is a judicial admission and a binding waiver of the issue.
3. Where a credible witness testifies directly and positively to a fact and is not contradicted and there is no circumstance shown from which an inference against the fact can be drawn that fact may be taken as established; and it is error to fail to consider it as established.
ACTION OF CONTRACT for milk delivered. Trial by court, Washington County Court, September Term, 1946, Hughes, J., presiding. Judgment for the plaintiff.
Judgment reversed, and judgment for the plaintiff to recover the sum of $ 2249.99, with interest thereon from September 30, 1945, with costs.
Finn & Monti for the plaintiff.
Lawson & Paterson for the defendant.
Present MOULTON, C. J., BUTTLES, JEFFORDS and CLEARY, JJ., and ADAMS Supr. J.
In this action the plaintiff seeks to recover a balance claimed to be due for skim milk and cream sold and delivered to the defendant during the period between April 4, 1945, and August 8, 1945, in the amount of $ 2249.99. The writ was dated April 3, 1946, and served on April 9, 1946. The trial was by the court and the judgment was for the plaintiff to recover the sum of $ 529.67, with interest of $ 47.67, in all $ 577.34. The cause is here upon the plaintiff's exceptions.
The plaintiff's specifications contain items showing sales of skim milk to the defendant to the amount of 3,100,355 pounds, at the following prices per hundred weight: April 1945,.6566; May,.6575; June,.6699; July,.6699; August,.6599, the entire sum being $ 20,-540.95. There is another item for hauling the milk at 5 cents per hundred weight, amounting to $ 1550.18. The third item is for two jugs of cream, charged at $ 43.86. The total is $ 22,134.99, against which there are credits consisting of payments on account, including a payment of $ 500 made after the action had been brought, in the sum of $ 19,885.00, leaving the balance claimed of $ 2249.99.
The material findings of fact are these: On April 11, 1946, after a conversation by telephone regarding a settlement of the controversy, the attorneys for the respective parties reduced their offers to writing. (These writings, which consist of letters are quoted elsewhere in this opinion, and the findings as to their contents need not be recited here.) The defendant conceded that the amount of milk charged to it, as shown by the semi-monthly statements sent to it by the plaintiff was correct, and that it received the milk in question, but claimed a misunderstanding as to the price, which it contended should be.5910 per hundred weight for April milk,.5918 per hundred weight for May milk,.5993 per hundred weight for June and July milk, and.5933 per hundred weight for August milk. The plaintiff asserted that these figures were based upon 90 pounds of skim milk, and that in order to ascertain the price for 100 pounds, they should be divided by 9 and multiplied by 10. The defendant conceded that it received two jugs of cream, for which it should be charged $ 43.86. The court found that the total charges made by the plaintiff to the defendant amounted to $ 24,277.75; that a certain credit item of $ 3,863.08, appearing on the last statement sent to the defendant, should be allowed and that, after adding this to the conceded payments on account, the total credit was $ 23,748.08, leaving a balance due of $ 529.67, upon which the plaintiff was entitled to interest. The findings also state that the negotiations between the attorneys as shown by their letters of April 11, 1946, should not be binding upon the parties, and that a concession made by the defendant's attorney in open court concerning the item in the plaintiff's specification of $ 1550.18 for hauling should not be taken against the defendant because he was expecting to be charged for skim milk only at prices ranging from.5910 to.5993.
There were many exception taken by the plaintiff to rulings made during trial and to the findings, to the refusal to comply with requests for findings and to the judgment. We shall not consider them one by one for in one way or another they raise only a few material issues.
The first in order is the construction placed by the Court upon the letters that passed between the attorneys, written after the action had been brought, which the plaintiff insists constitute a binding stipulation as to the basis upon which the judgment should have been rendered. Both letters having been introduced in evidence, we quote from each, as material.
The letter on behalf of the plaintiff contains the following:
The letter of the defendant's attorney is couched in this language: "Confirming our conversation had today with respect to settlement of the case of Granite City Cooperative Creamery, Inc. vs. B & K Cheese Co. Inc., we have computed the amounts to be charged on the basis of our talk, namely: at the rate of the Administrator's price per hundred, as in effect for the months involved, plus 5 cents per cwt. for hauling, and the following is an itemization of the results of our computation:
Certain evidence was introduced by the plaintiff tending to show the circumstances attending the exchange of the letters between the attorneys for the respective parties, which was not contradicted, but which the defendant argues need not have been accepted as conclusive by the trial court. We spend no time in the consideration of this contention, because, aside from all extrinsic evidence, the letters taken by themselves are sufficient to establish an agreement between the parties. The postscript to the letter of the defendant's attorney by its own language makes it entirely clear that it was written and signed after...
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Travers & Thomas v. Michael Rupe
... ... largely on the statement appearing in Granite City ... Creamery Co. v. B. & K. Cheese Co., 115 ... ...