Land Finance Corporation v. St. Johnsbury Wiring Co.

• Citation: 137 A. 324,100 Vt. 328
• Parties: LAND FINANCE CORPORATION v. ST. JOHNSBURY WIRING COMPANY
• Decision Date: 04 May 1927
• Court: Vermont Supreme Court

137 A. 324

100 Vt. 328

LAND FINANCE CORPORATION v. ST. JOHNSBURY WIRING COMPANY

Supreme Court of Vermont

May 4, 1927

February Term, 1927.

ACTION OF CONTRACT. Answer, failure of consideration misrepresentation and fraud. Trial by jury at the June Term 1926, Caledonia County, Thompson, J., presiding. Verdict directed for defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Reversed and remanded. Let the plaintiff recover his costs in this Court.

Sumner E. Darling, Jr., for the plaintiff.

Searles & Graves for the defendant.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

FISH

This is an action in general assumpsit brought to recover on a trade acceptance given by the defendant to the Autocrat Sales and Distributing Corporation and indorsed by the latter to the plaintiff before maturity. The defendant filed an answer setting up failure of consideration misrepresentation and fraud in the inception of the trade acceptance between the original parties thereto. The trial was by jury with a directed verdict for the defendant. The plaintiff saves two questions for the consideration of this Court. One is to the exclusion of a deposition because of the lack of a caption thereto, and the other to the refusal to grant a continuance. [1] The plaintiff introduced the trade acceptance and rested. Thereupon the defendant introduced evidence tending to show that the Autocrat Sales and Distributing Corporation had obtained the acceptance from the defendant by fraud and that there had been a failure of consideration. It did not appear that the plaintiff had been a party to any fraud or illegality affecting the instrument, and in rebuttal it offered to show that it was a holder in due course under the Negotiable Instruments Act (See Harponola Company v. Wilson, 96 Vt. 427, 120 A. 895). The evidence offered for this purpose was a deposition of the plaintiff's president and treasurer, Leopold Blumberg. To its admission the defendant objected on the sole ground that it had no caption and it was excluded.

1. The lack of the caption made the deposition inadmissible, and its exclusion was not error. The deposition was taken in New York City, upon notice to the defendant, before Alexander H. Rockmore, a notary public. The defendant appeared by counsel and cross-examined the deponent, who gave his testimony under oath and subscribed his deposition, but in place of the certificate and caption required by our statute appeared only the following jurat: "Sworn to before me this 8th day of April, 1926. Alexander H. Rockmore, Notary Public." G. L. 1915 provides that depositions of witnesses living without this State, if taken agreeably to the laws of this State, or of the state or country in which they are taken, shall be allowed in any court. G. L. 1923 makes provision, among other things, that the authority taking a deposition shall certify the same in the form prescribed by law. Form 32 of G. L. 7472 is the prescribed form for the caption and certificate of the magistrate taking a deposition. It is as follows:

"STATE OF VERMONT,............. County, At.......in the county of....... this.....day of.....A. D. 19..., personally appeared A. B., and made oath that the foregoing deposition, by him subscribed, contains the whole truth, and nothing but the truth.

Before me, C. D., Justice of the Peace. (Or other officer, as the case may be.)

The above deposition is taken at the request of E. F., to be used in a cause to be heard and tried by (here insert the style of the court, or the name of the justice, or the description of the board, etc., by whom the cause is to be tried and the time and place of the session); in which cause................ is plaintiff, and................ is defendant. The deponent living more than thirty miles from the place of trial, or, (here insert the cause of taking the deposition, as the case may be) is the cause of taking the deposition; and the adverse party was (or was not) notified, and did (or did not) attend.

Certified by, C. D., Justice of the Peace."

This form was prescribed in the Revision of 1797, chapter III, section 82, and has remained practically unchanged from that time until the present. This Court at an early date (1826) had occasion to pass on the subject of the admission of depositions in evidence in Pingry v. Washburn, 1 Aik. 264, 268, 15 A. D. 676, and speaking therein said:

"Depositions are, by our statute, admitted as evidence contrary to the rules of the common law, and they are a kind of testimony, not highly favored. A strict and literal compliance with the statute is necessary * * * * *."

The subject was again under review in McCrillis v. McCrillis, 38 Vt. 135, wherein this Court modified its earlier decision by holding that there must be a substantial compliance with the statute in order to admit a deposition in evidence. In this case the Court said:

"The form given in the statute for the certificate and caption of a deposition is to be regarded as a part of the law of the state governing the taking of depositions. But it has never been regarded as necessary that this form should be literally and exactly followed, but that all it contains and requires should be substantially used and embraced in order to make a sufficient compliance with the law. And when it has been said that this mode of taking testimony was not favored, and that a strict compliance with the law would be required in order to render it admissible, no more was meant, than that it should appear fairly and reasonably upon the face of the certificate and caption, that it was taken for a cause recognized as sufficient by the statute, and that the proceedings for the taking were a substantial compliance with the requirements of the statutes on the subject * * * * *."

That this Court has always insisted on either a literal or substantial compliance with the statute, whenever questions have been brought to it thereon for review, the following cases attest: Sanders v. Howe, 1 D. Chip. 363; Swift v. Cobb, 10 Vt. 282; Haskins v. Smith, 17 Vt. 263; Plimpton v. Town of Somerset, 42 Vt. 35; Chipman v. Tuttle, 1 D. Chip. 179; Hopkinson v. Watson, 17 Vt. 91; Whitney v. Sears, 16 Vt. 587; Barron v. Pettes, 18 Vt. 385; Lund v. Dawes, 41 Vt. 370; Oatman v. Andrew, 43 Vt. 466; Danforth v. Reynolds, 1 Vt. 259; Pike v. Blake, 8 Vt. 400; Johnson v. Perry, 54 Vt. 459; Clark's Admr. v. Wilmington Savings Bank, 89 Vt. 6, 93 A. 265; Streeter's Dependents v. Hunter, 93 Vt. 483, 108 A. 394.

The plaintiff says that the magistrate certified to a sufficient number of facts so that it can be said that the deposition has a caption. The facts relied on are that the deposition shows the names of the parties to the suit; the place and time of taking the...