Krulee v. F. C. Huyck & Sons

Decision Date03 November 1959
Docket NumberNo. 1309,1309
Citation156 A.2d 74,121 Vt. 299
CourtVermont Supreme Court
PartiesBetty E. KRULEE v. F. C. HUYCK & SONS.

McNamara & Larrow, Burlington, for plaintiff.

Wallace C. Schinoski, Ludlow, Parker & Ainsworth, Springfield, Martin Blackman, New York City, for defendant.

Before HOLDEN, SHANGRAW, BARNEY and SMITH, JJ., and DALEY, Superior judge.

BARNEY, Justice.

The controversy between the parties arose out of negotiations in connection with a proposed sale to the plaintiff of the Gay Brothers mill property, so-called, located in Cavendish, Vermont. The price being substantial in amount and the property to be transferred being varied in character and considerable in quantity, a purchase agreement was entered into between the parties. This agreement set forth with some particularity the obligations of both the plaintiff as buyer and the defendant as seller, if the transaction was to be consumated. It also provided that the plaintiff as buyer was required to deposit with the defendant as seller $33,500, ten per cent of the agreed price, to be forfeited to the seller if the buyer failed to perform. If the seller was unable to make conveyance at the closing date, he was required to remove the defects in title within thirty days or refund the deposit. At the time the closing was held each party claimed the other was in default, the buyer demanding a return of the deposit and the seller claiming the right to retain it.

During the trial witnesses on both sides testified that at various preliminary conferences between representatives of the parties the well water supply system several times came up for discussion, including the question of whether or not it constituted a public utility. At the close of the defendant's case and again at the close of all the evidence the plaintiff moved for a directed verdict on the grounds that the well water supply system was a public utility, which as a matter of law prevented the giving of good marketable title by the defendant. These motions were denied with exceptions to the plaintiff in each instance.

After the jury had been deliberating for several hours, they requested further instructions. One of the jurors inquired of the court whether or not the plaintiff's representative at the closing conference was legally justified in refusing to state what the defects were in the documents tendered by the representatives of the defendant. The court replied, 'The answer to your question is: No, Mr. Vaughn was not required to specify in what way the proposed documents were defective. He was not required to do so; no such obligation rested on him.'

Before giving this supplemental charge the court had indicated its content to counsel. At that time both sides were given an opportunity to state their objections to it for the record. The plaintiff had no objections, but the defendant made the following statement:

'We do object to that proposed supplemental charge, if the court please, because we say that the evidence does not warrant that. There is evidence in the case that tends to show--put it that way--that the tender of the deed at the time in question did in fact convey what the defendant had agreed by its contract to convey, and we say this supplemental charge as proposed excludes entirely any instruction to the jury upon the evidence bearing on that. I would say further that my recollection in the Drew case [Drew v. Bowen, 102 Vt. 124, 146 A. 254] is that there is a situation where the record showed that there was this pole line right across the property to be conveyed, which made it impossible under those circumstances for the vendor to complete. But that, we say, is not the situation here.'

After the charge was given, part of the original charge was repeated. All objections were then renewed, including the above-stated objection to the supplemental charge.

The jury by its verdict found that the deposit ought to be returned to the plaintiff, and the defendant is here seeking to have that verdict set aside on the basis of claimed error by the trial court in the supplemental charge.

In brief and argument the defendant argues that the charge was in error in stating that there was no obligation on the part of the plaintiff to disclose the reasons for considering defendant's deed defective and rejecting the tender. As the record shows, the exception taken to this charge was grounded only on the proposition that the tender made by the defendant was not defective. In short, the defendant is seeking to put the trial court in error on a ground not covered by its exception. This it cannot do. Vermont Salvage Corporation v. Northern Oil Co., Inc., 118 Vt. 337, 339, 109 A.2d 267; Robillard v. Tillotson, 118 Vt. 294, 302, 108 A.2d 524.

This Court has already indicated, in Abel's, Inc. v. Newton, 116 Vt. 272, 275, 74 A.2d 481, that its preference is to base an opinion on the point or points sought to be raised by the excepting party rather than have it go off on a procedural point, as in this case. Nevertheless, procedural rules are devices to insure fairness, uniformity and regularity of treatment to all litigants appearing before the courts, and to be meaningful, they must be enforced.

We are satisfied that insistence on the procedural proprieties works no injustice in this case. Both here and in the trial court plaintiff argued that since the well water supply system was a public utility and could not be transferred without the consent of...

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12 cases
  • First National Bank of White River Jct. v. Reed
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 1962
    ...that the Referee had been "clearly erroneous" in sustaining the mortgages. His view was based in part upon Krulee v. F. C. Huyck & Sons, 121 Vt. 299, 156 A.2d 74 (1959), and in part upon his feeling that "the purpose behind the statute here involved was to prevent a public service corporati......
  • Winter v. Unaitis
    • United States
    • United States State Supreme Court of Vermont
    • October 6, 1964
    ...... Krulee v. F. C. Huyck & Sons, 121 Vt. 299, 302, 156 A.2d 74; Russell v. Pilger, ......
  • Percival v. Fletcher, 36
    • United States
    • United States State Supreme Court of Vermont
    • November 3, 1959
  • In re Verizon Wireless Barton Permit, 09-201.
    • United States
    • United States State Supreme Court of Vermont
    • July 9, 2010
    ...of treatment to all litigants appearing before the courts, and to be meaningful, they must be enforced." Krulee v. F.C. Huyck & Sons, 121 Vt. 299, 302, 156 A.2d 74, 76 (1959). Though it was within the court's discretion to allow neighbors to make their arguments, the court certainly was not......
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