Jamie Jacobs v. Dwight A. Clark And Irene Clark

• Court: Vermont Supreme Court
• Writing for the Court: BUTTLES
• Citation: Jamie Jacobs v. Dwight A. Clark And Irene Clark, 28 A.2d 369, 112 Vt. 484 (Vt. 1942)
• Decision Date: 06 October 1942
• Parties: JAMIE JACOBS v. DWIGHT A. CLARK AND IRENE CLARK

28 A.2d 369

112 Vt. 484

JAMIE JACOBS v. DWIGHT A. CLARK AND IRENE CLARK

Supreme Court of Vermont

October 6, 1942

May Term, 1942.

1. Ambiguity in Written Instrument.---2. Illegal Sunday Sales.---3. Entire, Illegal Contracts Unenforceable.---4. Illegal Contracts.---5. Severable Contracts.---6. Enforcement of Partially Illegal Contracts.---7. Setting aside Verdict.

1. When a written instrument leaves room for doubt as to the extent of the obligation of a party thereto, the instrument is open to construction for the purpose of ascertaining the intention of the parties.

2. The indiscriminate sale of gasoline from a filling station on Sunday is illegal.

3. The courts will enforce no part of an entire, illegal contract.

4. Any contract requiring an act prohibited by statute or involving a penalty for its commission is as much illegal and void as if expressly so declared.

5. Where part of a contract is illegal, but the rest may be enforced without injustice and is not expressly or by necessary implication declared void, the courts will enforce the valid part.

6. Where the evidence is insufficient to indicate how the illegal and the legal portions of a contract may be separated, the entire contract is unenforceable.

7. Where a verdict was required for one party, the appellate court will reverse the action of the trial court in setting aside a verdict for that party as an abuse of discretion.

ACTION OF CONTRACT. Trial by jury at the September Term, 1941, of Washington County Court, Blackmer, J., presiding. Verdict for the defendants. Verdict set aside on plaintiff's motion.

Judgment reversed and judgment for the defendants to recover their costs.

Finn & Monti for the plaintiff.

H C. Shurtleff for the defendant.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

BUTTLES

In this action of contract the plaintiff seeks to recover damages for loss of prospective profits resulting, it is alleged, from breach of the defendants' obligation to keep open for business during the times specified therein a certain gasoline filling station at East Montpelier, Vermont, and to offer for sale therein gasoline and other petroleum products obtained from the plaintiff. Trial by jury resulted in a verdict for the defendants and the case comes to this court before final judgment under the provisions of P. L. 2072 upon the defendants' exceptions to the granting of plaintiff's motion to set aside the verdict and order a new trial, and also upon the plaintiff's exceptions to the denial of that part of his motion which moved for the granting of a new trial upon the issue of damages only. The plaintiff's motion was based upon numerous grounds which are therein set out in much detail. The court ordered that "the plaintiff's motion to set aside the verdict is granted, as a matter of discretion, on the ground that the verdict is against the weight of the evidence, and a new trial is ordered."

The declaration is in two counts the first of which relies upon the claimed breach of certain conditions to be performed by the defendants as set forth in a certain quit claim deed (Plaintiff's Exhibit No. 1) dated July 20, 1937, from the plaintiff to the defendants. So far as here material the provisions of said deed were as follows:

"It is made a condition of this deed and in full adjustment of all differences and claims of the respective parties that the grantees, their heirs, administrators or assigns, shall not sell from said premises or suffer to be sold therefrom during the period of twenty-five (25) years from and after the 15th day of June, A.D. 1937 any gasoline, oils, greases or petroleum products, except such as shall be purchased from the said grantor, Jamie E. Jacobs, his heirs or assigns, without the written consent of the said grantor. And it is made a part of such condition that the said grantor, his heirs or assigns, shall be ready and willing to furnish to the said grantees, their heirs or assigns, gasoline upon twenty-four (24) hours notice to deliver the same. And it is understood that at any time when the trucks of the grantor, his heirs or assigns, pass the premises of the grantees, the grantees may have such even amounts of gasoline as they desire, but if the grantors (sic) order for special trip or delivery from the grantee (sic) they shall order at least a six hundred (600) gallon lot. The said grantor for himself his heirs and assigns, agrees to keep the said grantees, their heirs or assigns, well supplied with gasoline, oils and greases suitable to supply the automobile trade. The gasoline is to be furnished at the current posted tank wagon price of the Standard Oil Company in this District, and the oil and greases to be furnished shall be at the same price said grantor furnishes like products to the other customers in this district.

And the said grantees, for themselves and their heirs, administrators and assigns, agree that as part of the consideration for this deed they shall keep between the hours of 7 A. M. and 9 P. M. on week days and between the hours of 8 A. M. and 8 P. M. on Sundays the premises ready for sale on said premises gasoline, oil, greases and petroleum products provided for them by the grantor herein."

Then follow provisions as to the twenty-five year period to which we later refer, and to certain incidental matters not here material.

A question is raised as to the extent of the obligation imposed by the contract upon the defendants and the language used leaves some room for doubt on this point. Under these circumstances the instrument is open to construction, the prime object being to ascertain the intention of the parties. Caverly-Gould Co. v. Springfield et al., 83 Vt. 396, 402, 76 A. 39; Spaulding Admr. v. Mut. Life Ins. Co. of New York, 96 Vt. 67, 80, 117 A. 376. The premises involved were adapted to the sale of gasoline and petroleum products at retail; the defendants contracted not to sell therefrom any such products except those which were purchased from the plaintiff, and the plaintiff agreed to keep the defendants well supplied therewith under the conditions set forth. It seems clear therefore that the parties intended that the defendants should be bound not only to keep the station open for business during the times specified but also that during those times they should be required to sell the specified commodities to all persons who might apply for the same in course of business, at least to the full extent that it would be reasonably possible for them to do so. We so construe the contract.

Among other defenses relied upon the defendants pleaded illegality of the agreement upon which the plaintiff's first count is based, in that it required the sale of gasoline, oils, greases, and petroleum products on Sundays in violation of the statute. P. L. 8706, so far as here material, provides that "a person shall not between twelve o'clock Saturday night and twelve o'clock the following Sunday night exercise any secular business or employment, except works of necessity and charity. * * * * A person who violates a provision of this section shall be fined not more than fifty dollars for each offense."

The application of this section of the statute to circumstances somewhat similar to those here existing was considered by this Court in State v. Corologos et al. 101 Vt. 300, 143 A. 284, 59 A.L.R. 1541. That case involved the sale on Sunday by the respondents to divers persons of ice cream, sundaes, milk shake, hot chocolate and lemon sour. It was contended that in the light of modern conditions and ways of life the word "necessity" should be given an interpretation broad enough to include the sale of these commodities. But after reviewing the history of legislation in Vermont restricting activities on Sunday and analysing the meaning of the word "necessity " as developed in various cases the Court refused to adopt this view. In reaching its conclusion the Court said: "But assuming that under the present mode of living the commodities in question have attained the dignity of necessaries the same as meat, butter, sugar, eggs, etc., an indiscriminate sale of them on the Sabbath to all who desire to purchase, regardless of necessity, cannot be excused under this statute. No one has ever had the temerity to claim that the butcher or grocer can keep open market on Sunday simply because the articles in which they deal constitute necessaries. Admitting that a reasonable necessity for any commodity may excuse a sale thereof on Sunday, nothing short of such necessity will excuse it. To hold otherwise would be to repeal, in effect, the express limitation imposed by the Legislature. " No doubt some Sunday sales of gasoline or...