Hammonds, Inc. v. C. E. Flanders

• Decision Date: 04 May 1937
• Parties: HAMMONDS, INC. v. C. E. FLANDERS
• Court: Vermont Supreme Court

191 A. 925

109 Vt. 78

HAMMONDS, INC. v. C. E. FLANDERS

Supreme Court of Vermont

May 4, 1937

February Term, 1937.

Exceptions Construed---Trial by Court in Municipal Court---Findings of Fact Insufficient to Support Judgment---Burden of Proving Accord and Satisfaction---Prima Facie Case Made out and Effect on Burden of Proof of Evidence Notation Showing Accord and Satisfaction Not on Check When Received---Exception Not Considered Because Cause to Be Remanded for New Trial---Cause Remanded Where Possibility of Meritorious Defense Indicated.

1. Exceptions recited in bill of exceptions as taken to findings of fact were considered sufficient to apprise trial court that they were intended as exceptions to judgment on ground that findings were insufficient to support it, and were so treated in Supreme Court.

2. It is duty of municipal court, when cause triable by jury is tried by court, to make and file findings of fact upon which judgment is rendered, and in making such findings, to sift the evidence and state the facts.

3. In ACTION OF CONTRACT tried by court, findings of fact reciting evidence presented by both parties and stating court found defendant had made out his case, showing payment, as a defense, by fair preponderance of weight of evidence, held insufficient to support judgment for defendant.

4. In ACTION OF CONTRACT to recover balance due, to which defendant pleaded accord and satisfaction, burden of proving that defense was upon defendant.

5. In such action, when defendant had introduced check with notation on it "Balance of account to date * * * per statement attached" and endorsement of plaintiff on its back, and evidence tending to show that he had mailed with check letter and statement of account, he had made out prima facie case of accord and satisfaction if balance due was disputed and unliquidated, and burden of evidence then shifted to plaintiff; but when plaintiff introduced evidence tending to show that notation was not upon check when he received it, and that he did not receive letter and statement of account, presumption that defendant did not fraudulently add notation after check was returned to him became functus officio, so far as sustaining burden of evidence was concerned, and burden remained on defendant to show that notation was then on check, and that plaintiff received letter and statement.

6. In such action, exception that plaintiff should have had judgment for items of specification conceded was not considered where cause was to be remanded for new trial.

7. In such action, where judgment for defendant was reversed but record indicated that he might have a meritorious defense on proper presentation and finding of facts, cause was remanded for new trial that no injustice might be done.

ACTION OF CONTRACT to recover balance alleged to be due on account. Pleas, the general issue and accord and satisfaction. Trial by court in Windsor municipal court, A. G. Witham, Acting Municipal Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment reversed, and cause remanded.

G F. Davis for the plaintiff.

Clayton H. Kinney for the defendant.

Present POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

SHERBURNE

This is an action in contract to recover a balance alleged to be due on account. The defendant pleaded the general issue and accord and satisfaction. Trial was by court and judgment was for the defendant, and the case comes up upon plaintiff's exceptions.

Because the findings are meager, it is necessary to set forth what they show and to quote from them to some considerable extent in order properly to present the points made by the exceptions. "All items in specification, except interest items, were conceded subject to defendant's claim of full payment. In support of his answer, defendant's evidence tended to show that there was an unsettled account between plaintiff and defendant, and that certain items of 'commission' were in dispute. That after a talk between them * * * the defendant wrote a letter to the plaintiff enclosing a statement of the account between them, as he then claimed it to be, and enclosed a check for $ 101.68 (Deft's 1, Deft's 8 and Deft's 9). That said check bore on the upper left-hand corner thereof the notation 'Balance on account to date $ 101.68 per statement attached' when mailed to the plaintiff with said letter and statement. That the check later came back through the bank in the usual course of business bearing the plaintiff's endorsement on the back thereof." The plaintiff denied having received the letter and statement, and copies were received in connection with defendant's testimony. The plaintiff averred that the notation was not on the check when he received it, and produced his bookkeeper in corroboration of his testimony, who would not swear that the notation was not on the check when she opened the mail, but could not remember any letter or statement enclosed with the check. "According to the rules, the burden was on the defendant to show payment. The check (Deft's 1) and the endorsement by plaintiff is prima facie evidence of the fact shown by it, and unless overcome by other evidence, is evidence of payment. It would have been tantamount to fraud, if defendant made the notation showing payment in the upper left-hand portion of said check, after it came back into his possession through the bank, and without the knowledge of the plaintiff, the other party to be bound thereby. Or if defendant created, 'faked' or made up letters to create evidence in his favor for the purposes of this trial. It is a rule of law that he who alleges fraud must prove it. The burden shifts from the defendant, who it is held has made out a prima facie case, at least, to the plaintiff, who claims that the check has been altered, that the purported copies of letters introduced by the defendant are untrue, that he never received any such letters. Fraud is never presumed, but must be affirmatively proved by a fair preponderance of the weight of the evidence. The law presumes that all men act fairly and honestly, that their dealings are in good faith, until such presumption is overcome by a preponderance of the weight of the evidence. In this case the court cannot presume that the defendant forged the notation in the upper left-hand corner of Deft's Ex. 1 after it came back into his hands, or that defendant 'faked' or forged the several letters, copies of which were produced, but which plaintiff said he never received. Standing as the evidence does, after careful scrutiny of all the evidence and exhibits submitted to me, I find that the defendant has made out his case, showing payment, as a...