E. L. Stoddard & Son v. Village of North Troy

• Decision Date: 07 May 1930
• Citation: 150 A. 148,102 Vt. 462
• Parties: E. L. STODDARD & SON v. VILLAGE OF NORTH TROY
• Court: Vermont Supreme Court

150 A. 148

102 Vt. 462

E. L. STODDARD & SON v. VILLAGE OF NORTH TROY

Supreme Court of Vermont

May 7, 1930

February Term, 1930.

Necessity of Taking Exception To Secure Review of Claimed Error---Harmless Error---Contracts---Evidence Relating To Modification of Written Contract---When Written Contract May Be Modified by Parol---Consideration---Necessity of Stating Objection to Claimed Error in Admission of Evidence---Customs and Usages---Burden on Excepting Party---Construction of Record on Exceptions---Questions Not Raised Below---Breach of Contract---Condition Precedent To Performance---Jury Question---General Ground for Directed Verdict---Book Account---Partnership---Effect of Cessation of Business after Writ Issued---Assignments.

1. Merely to state an objection, without taking an exception, is not enough to reserve question for review.

2. Error, if any, in admitting testimony over objection, held harmless, where transcript showed that witness later testified to same effect without objection or exception.

3. Where under written contract between plaintiffs and defendant, latter was to furnish former with specified amount of work in construction of sidewalks and curbing, and also to furnish sand, gravel, and stone therefor free of costs to plaintiffs, except for hauling, evidence of conversation which took place before signing between one of plaintiffs and trustee of defendant village as to place where defendant would set up its stonecrusher and where such material would be available to plaintiffs, held admissible not as tending to vary terms of written contract, but as explanatory of situation under which subsequent modification of contract was made, respecting obtaining of such material at a greater distance, and payment for difference in hauling.

4. Where plaintiffs entered into written contract with defendant village to construct sidewalks and curbings for it, village to furnish sand, gravel, and stone therefor free of cost to plaintiffs except for hauling, evidence of conversation subsequent to execution of contract between one of plaintiffs and trustee of defendant village in which latter said that village would not set up its crusher as intended, and that plaintiffs would have to obtain stone at place which required longer haul than from place pointed out in conversation prior to entering into contract, and that village would pay difference in hauling, held admissible to show modification of contract.

5. Where contract was not under seal, and not required to be in writing under statute of frauds, parties might, at any time before breach, by oral contract, dissolve contract, or change its terms, and thus make new contract.

6. Where original contract is executory, and no breach has occurred, no new consideration is required to support its modification.

7. Exception to evidence, where no ground of objection was stated in lower court, will not be considered in Supreme Court.

8. Where one item of plaintiff's claim was for fair and reasonable value of extra work in screening gravel, performed under verbal modification of written contract, whereby crusher material to be furnished by defendant village under such contract was not supplied, evidence as to usage requiring contractor to do screening when it is not especially mentioned, held properly excluded.

9. Usage or custom is admissible in evidence only if both parties to contract were cognizant of it, and entered into agreement with reference to it, or if it were so general or notorious that knowledge or adoption of it might be presumed.

10. Burden is on excepting party to produce in Supreme Court record showing that exception explicitly apprising trial court of point involved was saved.

11. On exceptions to Supreme Court, record is to be construed against excepting party.

12. Questions not raised below will not be considered by Supreme Court.

13. Where under contract of plaintiffs with defendant village latter was to furnish necessary tar and pitch, held that it could not be said as matter of law that plaintiffs were in default and so not justified in abandoning work, if defendant prevented them from proceeding by failing to furnish such material, plaintiffs' evidence tending to show that defendant's claim that plaintiffs had not already paid in full for tar furnished was unfounded, and to show that at that time defendant was indebted to them in sum exceeding unpaid balance, for work and labor done under verbal modification of written contract.

14. Under contract for construction of sidewalks and curbing by plaintiffs for defendant village, where latter were to furnish necessary tar and pitch therefor, to be paid for by plaintiffs, furnishing of such materials by defendant was a condition precedent to performance on part of plaintiffs.

15. Where defendant village under contract with plaintiffs was to furnish tar and pitch to them for construction of sidewalks and curbing by latter, who were to buy such material from defendant, whether defendant acted capriciously and without reason in refusing to furnish such material, held a question for jury.

16. In motion for directed verdict, ground that evidence, viewed in light most favorable to plaintiffs, wholly failed to establish any right of action arising out of contract alleged in declaration, held not to point out any precise basis upon which it is predicated, and to be too general for consideration.

17. Where plaintiffs brought

ACTION OF CONTRACT to recover upon a special contract, and also for work and labor done and performed. Plea, general denial and payment. Defendant also filed declaration in book account in offset. Trial by jury at the December Term, 1928, Windsor County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Frank S. Rogers and Stanley C. Wilson for the defendant.

Gelsi Monti and Raymond Trainor for the plaintiffs.

Present POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

MOULTON

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 plaintiffs' 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 16, 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, as amended by 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 percent 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 all 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 ten percent; 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...