E. L. Stoddard & Son v. Vill. of N. Troy
| Decision Date | 07 May 1930 |
| Citation | 150 A. 148 |
| Court | Vermont Supreme Court |
| Parties | E. L. STODDARD & SON v. VILLAGE OF NORTH TROY. |
Exceptions from Windsor County Court; John S. Buttles, Judge.
Action by E. L. Stoddard & Son against the Village of North Troy. Verdict for plaintiffs, and defendant brings exceptions.
Judgment affirmed.
Argued before BOWERS, C. J., and SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.
Gelsi Monti, of Northfield, and Raymond Trainor, of White River Junction, for plaintiffs.
Prank S. Rogers, of North Troy, and Stanley C. Wilson, of Chelsea, for defendant.
This is an action of contract, and the declaration is in two counts, one based upon the breach of a written contract and the other for work and labor. The defendant pleaded a general denial and payment, and filed a declaration in offset in book account. The only disputed item in the defendant's account was found by the court, and the case went to trial by jury on the items of the plaintiff's specifications. There was a verdict for the plaintiffs. The case is before us on the defendant's exceptions.
The suit was originally brought in the name of Elmer W. Stoddard, a member of the partnership of E. L. Stoddard & Son, as assignee of the cause of action from Edgar L. Stoddard, the other partner. The assignment was in writing, and dated April 10, 1927. The writ issued April 22, 1927, and the assignment was alleged in both counts of the declaration. On January 1, 1928, the partnership filed a certificate of cessation of business, as required by G. L. 5746, No. 157, Acts 1919. Thereafter, and shortly before the trial, Edgar L. Stoddard was permitted to enter as a party plaintiff, and leave was given to prosecute the cause in the name of Elmer W. Stoddard & Son, a partnership consisting of Elmer W. Stoddard and Edgar L. Stoddard, and to amend the declaration by striking out the allegations of the assignment.
The written contract, which was dated June 9, 1926, between the plaintiff partnership and the defendant village, provided that the latter should furnish the former with at least $5,000 worth of work in the construction of new sidewalks and curbing, and in the resurfacing of sidewalks at specified prices for each kind of work. Payment was to be made weekly for all work; but the defendant was to hold 10 per cent. of the price as a guaranty of good workmanship until the work was finished, when the sum was to be deposited in a specified bank at interest for five years. If no repairs became necessary within that time, the money was to be paid over to the plaintiffs, their heirs or assigns; otherwise they were to make the necessary repairs and to receive the money. If they failed to make the repairs, the defendant was at liberty to use the money as it saw fit. The defendant agreed to furnish the grade, do the excavating and filling, and furnish sand, gravel, and stone free of cost to the plaintiffs, except for the hauling. The plaintiffs were to furnish all the necessary materials and labor, except as otherwise stated, and they agreed to buy nil the necessary tar and pitch from the defendant. The plaintiffs sought to recover for loss of profits caused by the claimed failures of the defendant to do the excavating and filling; to furnish sand, gravel, tar, and pitch as agreed; to pay weekly, except for the retention of 10 per cent.; and to furnish $5,000 worth of work.
Under the second count recovery was sought for certain so-called extra work claimed to have been performed by the plaintiffs under the promise of the defendant to pay.
The first ground for reversal upon which the defendant insists lies in the admission of certain testimony of Elmer L. Stoddard. He testified without objection that before the signing of the contract he had some talk with one of the trustees of the defendant village with respect to furnishing the grade mentioned in the contract. He was then asked: "What was the talk with reference to the grade?" Counsel for the defendant interposed, "May, it be under our objection on the grounds previously stated?" The court said, "Yes," and the witness proceeded to answer, in effect, that, since there was no civil engineer in town, the trustee asked him to set the grade, which he agreed to do.
It may be doubted whether the language of counsel, above quoted, is sufficient to reserve a question for review. Merely to state an objection, without taking an exception, is not enough. Newton v. Am. Car Sprinkler, Co., 88 Vt. 487, 494, 92 A. 831; Townshend v. Townshend, 84 Vt. 315, 317, 79 A. 388; State v. Sawyer, 67 Vt. 239, 240, 31 A. 285: Slayton, Trustee v. Drown, 93 Vt. 290, 296, 107 A. 307. But, if we assume the exception to be available, whatever error there may have been was harmless, because the transcript shows that later in his direct examination the witness testified to the same effect without objection or exception. People's Nat. Bank v. Brunelle, 101 Vt. 42, 47, 140 A. 160; Residents of Royalton v. C. V. Ry. Co., 100 Vt. 443, 450, 138 A. 782; Burke v. Powers' Est, 100 Vt. 312, 345, 137 A. 202.
Several exceptions are briefed together by the defendant, and we so consider them here. It appeared that the negotiations leading up to the signing of the written contract were conducted on the part of the defendant by a Mr. Fowler, one of the village trustees, and on behalf of the plaintiffs by Elmer L. Stoddard. Subject to defendant's exception, the latter was permitted to testify that prior to the execution of the contract there was talk between them as to where the sand and gravel and stone was to be obtained, because he desired to know how far it would have to be hauled before he made a price for his work, and that Mr. Fowler pointed out to him a certain sand and gravel pit, and said that the village had a stone crusher which was to be set up in a particular place, and that he could have stone from the crusher. This arrangement, it appeared, would require hauling for distances varying from one hundred yards to three-quarters of a mile. But, he testified, after the execution of the contract Mr. Fowler told him that the stone crusher was not to be set up, and that he would have to get his stone at Jay brook or at the Mississquoi river, which would compel him to haul the material between two and five miles, but Mr. Fowler said that the defendant village would pay for the difference in hauling thus rendered necessary. The plaintiffs sought to recover, under the second count of the declaration, for this difference in hauling, which was a part of what was denominated "extra work."
The objection to this evidence was that it varied the terms of the written contract by parol, and it is argued that, since the instrument did not confine the location of the material to a particular place, the plaintiffs were obliged to do the hauling wherever it was situated. It is claimed that there was no contract as to the hauling, based upon a sufficient consideration.
However, assuming the correctness of the defendant's contention regarding the construction of the written contract, in the absence of a stipulation therein concerning the location of the material, still the evidence of the conversation which took place before the signing of the instrument was admissible, not as tending to vary its terms, but as explanatory of the situation under which a subsequent modification of it was made. The evidence of what was said after the signing tended to show such a modification. The contract was not under seal, and it is not claimed that it was one required to be in writing under the statute of frauds. The parties might therefore at any time before a breach of it, by a new contract not in writing, waive, dissolve, or annul the former agreement, or in any manner add to, subtract from, or vary or qualify its terms, and thus make a new contract. Powers v. Rutland R. R. Co., 88 Vt. 376, 394, 395. 92 A. 463 and cases cited. Since the original contract was executory, and no breach had as yet occurred, no new consideration was required. Hill et al. v. Scott, 101 Vt. 356, 361. 143 A. 276. These exceptions are not sustained.
The plaintiff offered to show by Elmer L. Stoddard that, after the contract had been signed, the village officials instructed him to furnish the grade, which under the contract it was the defendant's duty to do, and that the defendant would pay for it. The evidence was received, and the defendant excepted. No ground of objection was stated, and so the question is not for consideration here. Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670; Morgan v. Gould, 96 Vt. 275, 279, 119 A. 517; Twombly v. Piette, 99 Vt. 499, 510, 134 A. 700. Indeed, the offered evidence was clearly relevant and material, because it tended to show a subsequent verbal modification of the written contract.
One item in the plaintiff's claim for extra work was for screening the gravel obtained at Jay brook and the river after the talk with Mr. Fowler. Elmer L. Stoddard testified, without objection, that the screening of river material was necessary, but that crusher material did not require it. He also testified that he made no charge for such screening as it would have been necessary to do at the sand pit, but only for the extra screening done in carrying out Mr. Fowler's instructions.
A witness, called by the defendant was asked upon direct examination: "In the contracting business is there a usage as to whether or not screening is a part of the contract price for doing the work when not mentioned?"
Upon objection being made, the defendant offered to show "that in the contracting business where screening is not especially mentioned the contractor always does it." The offered evidence was excluded, and the defendant excepted. Here was no error. Under the circumstances, the question of usage or custom was not material. No fixed contract price was involved. Recovery was sought for the fair and reasonable value of work performed under the verbal...
To continue reading
Request your trial