Joseph Boville v. Dalton Paper Mills

• Decision Date: 23 December 1912
• Citation: 85 A. 623,86 Vt. 305
• Parties: JOSEPH BOVILLE v. DALTON PAPER MILLS
• Court: Vermont Supreme Court

85 A. 623

86 Vt. 305

JOSEPH BOVILLE v. DALTON PAPER MILLS

Supreme Court of Vermont

December 23, 1912

Special Term at St. Johnsbury, April, 1912.

GENERAL AND SPECIAL ASSUMPSIT. Plea, the general issue with notice. Trial by jury at the October Term, 1911. Essex County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the case.

Judgment affirmed.

George L. Hunt for the defendant.

Harland B. Howe, Samuel E. Richardson and Harry W Witters for the plaintiff.

ROWELL C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.

OPINION

MUNSON

The declaration is in assumpsit, and consists of the common counts and one special count. The plaintiff's specifications were filed June 21, 1911. The defendant filed a demurrer to the declaration on the first day of the October Term. The rules require that a demurrer be filed within ten days after the filing of specifications, and the court dismissed the demurrer as filed out of time. Defendant contends that the paper filed June 21 was not a specification, and that it was not required to file its demurrer any earlier than it did. The ad damnum in the writ was $ 3,000, but the items of the specification amounted to nearly $ 5,000; and it is argued from this that the specifications are outside the scope of the pleading and constitute a variance.

It cannot be said that the discrepancy between the ad damnum and the total of the items specified made the specifications a nullity. The larger total of the specifications did not require the conclusion that the plaintiff's claim was anything different from what it was specifically stated to be, or anything inconsistent with the amount of the ad damnum. It is not essential to the sufficiency of a bill of particulars that it contains matters which afford a defence or offset for the adverse party. 31 Cyc. 566, and cases cited. Moreover, no motion for a further specification was filed; and it has been held that if the adverse party does not apply for a further or more specific bill of particulars he cannot ignore the bill furnished and proceed as if none had been filed, unless bad faith is shown in respect to the original bill. 31 Cyc. 581; citing McCarthey v. Mooney, 41 Ill. 300; Davis v. Johnson, 96 Minn. 130, 104 N.W. 766; Purdy v. Warden, 18 Wend. 671; Bates v. Wotkyns, 2 How. Pr. 18.

The special count alleged an express contract, partial performance by the plaintiff, and a breach by the defendant which prevented plaintiff's further performance. Before any evidence was introduced, defendant moved that the plaintiff be required to elect whether he would stand on the common counts or the special count, and the plaintiff thereupon elected to proceed under the common counts. The plaintiff introduced evidence tending to show that he had a contract for doing the work covered by his specification at agreed prices, by which he was to receive payment on the fifteenth day of each month for the work done the previous month; evidence tending to show that the defendant failed to make these payments in accordance with the agreement; and evidence which it is claimed tended to show that this made it impossible for the plaintiff to complete his undertaking. The evidence regarding the defendant's failure to pay was excepted to as immaterial in view of the plaintiff's election to stand on the common counts. In connection with this exception the defendant cites Myrick v. Slason, 19 Vt. 121; Camp v. Barker, 21 Vt. 469. Neither case presents the question arising here. It is the uniform holding of our cases that one may recover under the common counts for work done under a special contract which he has been compelled to abandon by the non-performance of the other party. Of these cases reference may be had to Chamberlin v. Scott, 33 Vt. 80; Davis v. Streeter, 75 Vt. 214, 54 A. 185.

The inquiries of defendant's counsel and the replies of his witnesses both recognized the fact that there was an agreement between the parties as to the work to be done and the terms of payment. But the defendant claimed that there was no written contract, and excepted to evidence introduced by the plaintiff to show that one was prepared and signed. In its charge to the jury the court said: "I understand it to be conceded that the writing must have been signed by the parties in order to constitute an express contract," and that "otherwise the plaintiff must rely upon an implied contract"; and it does not appear that any suggestion to the contrary was made by counsel. In line with this understanding, the court instructed the jury that the plaintiff could recover either on the ground of an express contract or on the ground of an implied contract; that to establish the first ground the plaintiff must show that there was an express contract between him and the defendant, that such contract was signed by the defendant, that plaintiff did not voluntarily abandon the contract, and that defendant by its acts or default prevented him from completing it; and that if the plaintiff failed to establish any of these things he could not recover on the ground of an express contract. One ground of the defendant's motion for a verdict, as orally developed in a discussion between court and counsel, was that there was no evidence in the case tending to show that the defendant ever signed a contract with the plaintiff. The question whether there was such evidence involves an inquiry as to the relation sustained to the defendant by J. H. Beattie, a deceased employee, and the consequent admissibility or inadmissibility of his declarations.

The plaintiff claimed that the defendant had or had had in its possession a type-written agreement signed by both parties; and he procured an order in advance of the trial under which the defendant filed in court a type-written paper signed by the plaintiff alone. The plaintiff introduced this and two other identical papers, one of which bore the signature of the plaintiff, but neither of which was signed by the defendant. These were received in connection with evidence which it was claimed tended to show that there was a fourth impression, which had been signed by the defendant and delivered to the plaintiff and afterwards obtained from the plaintiff by Beattie. The defendant claimed, and there was evidence tending to show, that only three impressions were made. The ones produced were received in evidence against the objection that no contract had been executed by the defendant, and that in any event the contract was immaterial.

This outline of the positions taken regarding the contract will serve to indicate the bearing and importance of the various features of the testimony; and the case which the testimony tends to establish must now be stated with sufficient fullness to afford a basis for the disposition of the several exceptions relied upon.

The defendant is a corporation located at Portland, Maine, and owning timber lands in Lemington and Averill in this State. Its president and treasurer, and most if not all its directors, resided in Portland. It operated a pulp-mill at Fitzdale in this State, and had a general manager who resided there. The arrangement with the plaintiff was made by E. J Parsons, an agent of the defendant, and the writing was prepared by Porter H. Dale, the defendant's attorney. Parsons lived at Island Pond, and had general charge of the defendant's operations in the woods, reporting to and receiving his instructions directly from the company. He had authority to engage some one for the immediate oversight of the plaintiff's work, and employed J. H. Beattie for this service. The contract as prepared names Beattie as the defendant's agent, and provides that the plaintiff shall conduct all his operations as Beattie may direct. Beattie was engaged for this service before the writing was prepared, and he acted for the defendant in connection with plaintiff's operations until his death. The plaintiff lived at Bloomfield in this State. Parsons had an impression that he signed the papers at Island Pond, but was very doubtful about it. Plaintiff's signature was witnessed by J. H. Beattie and plaintiff's daughter. Plaintiff testified that Beattie brought the papers to him at Bloomfield, and that the number of papers signed was three; that after he had signed them Beattie took them away, saying he was going to send them to Portland to be signed; that Beattie brought one back soon after and handed it to plaintiff, saying: "There is your contract"; that plaintiff cannot read written English, but that he looked at the paper and saw that it was signed by two names, and that Beattie said it was the signature of the defendant; that Beattie afterwards came and asked for the paper, saying he would return it soon, and that he gave it to Beattie and had not seen it since. Parsons testified that there were but three copies, and that the two signed by the plaintiff (Exs. 1 and 3) were sent to Portland for the signature of the defendant, and were never returned to him; that he learned soon after that the defendant had refused to sign the paper, but never informed the plaintiff of this fact; and testified further that he retained the copy that was not signed (Ex. 2) and kept it in his possession until Beattie asked for it as a memorandum to guide him in looking after the work, and that when Beattie's papers relating to the job were sent to him after his death he found this copy among them, and had had it in his possession since. The defendant produced C. G. Allen, who was a director of the company but not an officer of it; and he testified that one of these copies was submitted and considered at a directors' meeting, and that the result of the discussion was that the contract was not signed-- that...