Holbrook Grocery Company v. H. A. Armstrong

• Decision Date: 03 October 1923
• Parties: HOLBROOK GROCERY COMPANY v. H. A. ARMSTRONG
• Court: Vermont Supreme Court

122 A. 458

97 Vt. 197

HOLBROOK GROCERY COMPANY v. H. A. ARMSTRONG

Supreme Court of Vermont

October 3, 1923

February Term, 1923.

ACTION OF CONTRACT. Pleas, general denial, and fraudulent representations. Trial by jury at the December Term, 1921 Windsor County, Wilson, J., presiding. Verdict and judgment for the defendant, the plaintiff excepted. The opinion states the case.

Judgment affirmed.

Warren R. Austin and David A. Pingree for the plaintiff.

Raymond Trainor and Paul Gilioli for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

This is an action for breach of contract, trial by jury verdict for defendant, exception by plaintiff. Defendant Armstrong bought of the plaintiff through its agent, H. E. Palmer, twenty bags Java granulated sugar to be delivered f. o. b. Vermont car, about July shipment. The contract was in writing, signed by the parties and dated May 17, 1920. The sugar was ordered by plaintiff from Java, came by steamer to New York, was then shipped to the defendant, and reached White River Junction about August 9, of which defendant had due notice, all in accordance with said written contract. He refused to accept the sugar, and this action is to recover the damages for breach of contract.

That the contract was signed by the defendant and was fully performed on the part of the plaintiff by delivery within the time, and of the kind and quality of sugar called for by the terms of the contract, is not disputed. The amount of damages, if the plaintiff was entitled to recover, was fixed by agreement.

The sole ground of defense is that the defendant was induced to sign the contract or order for sugar, which he would not otherwise have signed, by the false and fraudulent representation of plaintiff's agent, Palmer, that the sugar would be "fine granulated sugar," when in fact it was not "fine granulated sugar," but of a coarser grade, and so the contract was void. This was the sole question in the case, and the question submitted to the jury, on which the verdict and judgment was based. Plaintiff denied any fraud or misrepresentation.

At the close of all the evidence the plaintiff moved the court to direct a verdict in its favor on the ground, in substance, that there was no evidence tending to show that the defendant was in any way misled, or that there was any fraud or misrepresentation of a material fact, such as would vitiate the contract, and that there was no evidence of any statements or representations of such a nature as to entitle defendant to rescind. The motion was overruled, and the plaintiff allowed an exception. The charge of the court was satisfactory. Other exceptions were taken by the plaintiff during the trial to the admission of evidence and rulings of the court, which will be considered later. Plaintiff's exceptions to the ruling of the court on its motion to take the question of fraud from the jury and for a directed verdict in its favor, as well as the motion to set aside the verdict, all raise the question of the legal sufficiency of the representations relied on by the defendant to constitute fraud.

The defendant Armstrong testified that--"Palmer asked me that night if I was going to buy some of that Java sugar, going to order some, and I told Palmer that I was afraid of Java sugar as I had had coarse sugar from Brazil previously and didn't want any more of it. I wouldn't accept any more of that kind of sugar at any price, and he told me I need not worry about the quality of the sugar, it was fine granulated sugar and I could depend on it." That he believed and relied upon the statement of Palmer and thereupon signed the contract. Witness Hudson testified that defendant told Palmer that "he didn't want the coarse sugar," and that Palmer replied that "it would be the fine granulated sugar." This evidence tended to show that both understood they were using the word "fine" as the opposite of "coarse," rather than its quality as to sweetness. It is solely upon these statements of Palmer that fraud is predicated, and defendant insists that he rightfully understood that "fine sugar" referred to the size of the particles and not to quality. Palmer called as a witness for plaintiff testified that--"I told him the Holbrook Grocery Co. had purchased a large amount of Java granulated sugar and I understood that this was to be a good grade of granulated sugar similar to American sugar, the particles might not be quite as fine, but it was a good grade of granulated sugar nothing like the conservation sugar that he had bought of me or someone else." The Brazil sugar, it appears, was sometimes referred to as conservation sugar, but was not a granulated sugar. Defendant previously had some coarse foreign sugar from Brazil, and the evidence tended to show, when he objected to ordering Java sugar on account of its coarseness, he was assured by Palmer that he need not worry about the quality of the sugar, it was fine granulated sugar, and he could depend upon it. Defendant was a merchant at White River Junction, was familiar with American refined sugar, but knew nothing about Java sugar or Java granulated sugar. Palmer told him that this sugar had been purchased by the company, and it was this particular sugar that was being sold. The statement, according to the testimony of Palmer, had reference to a grade of granulated sugar similar to American sugar, and if made as defendant testified was at least capable of being understood as relating to the present fineness of the granules as compared with American sugar, for Palmer said it was to be "similar in grade." This was calculated to quiet the defendant's doubts as to coarseness of the sugar, and he had a right to rely thereon in placing the order. If the defendant understood Palmer as referring to the grade of fineness rather than the quality of sweetness, and Palmer intended him to so understand, and so defendant was deceived, it was fraudulent. It was a subject of inquiry by defendant, affecting the essence and substance of the contract, and was material. Stone & Wellington v. Robie, 66 Vt. 245, 29 A. 257. The statement of Palmer, if made, was of an existing fact, not of a mere promise of something in the future made while knowing he was without knowledge regarding it, which is enough. Johnson v. Cate, 75 Vt. 100, 53 A. 329; Cabot v. Christie, 42 Vt. 121, 1 A. R. 313. Whether these statements were in fact made to induce the sale, and rightfully relied upon by defendant, and whether the sugar was in fineness as...