Lash Furniture Co. of Barre v. Norton, 1936

• Citation: 185 A.2d 734,123 Vt. 226
• Decision Date: 07 November 1962
• Docket Number: No. 1936,1936
• Parties: LASH FURNITURE COMPANY OF BARRE, Inc. v. Kenneth NORTON, and Northfield National Bank, trustee.
• Court: United States State Supreme Court of Vermont

Page 734

185 A.2d 734

123 Vt. 226

LASH FURNITURE COMPANY OF BARRE, Inc. v. Kenneth NORTON, and Northfield National Bank, trustee.

No. 1936.

Supreme Court of Vermont.

Nov. 7, 1962.

Monti, Eldredge, Calhoun & Free, Barre, for plaintiff.

Black & Plante, White River Junction, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SHANGRAW, Justice.

This is an action of contract in which the plaintiff seeks to recover from the defendant the balance claimed to be due upon the purchase price of certain furniture. Trial was had by the Barre Municipal Court without a jury on January 10, 1962. Findings of fact were not made by the court. Under date of February 15, 1962 a formal judgment order was issued in favor of the plaintiff to recover of the defendant $271.48 damages and costs of $21.06, a total of $292.54. A copy of the judgment order was duly sent to attorneys for the plaintiff and defendant. The judgment order recites that findings of fact were waived. On March 2, 1962 the defendant filed a notice of appeal.

The defendant appeared pro se at the trial and claimed that the furniture which he received was not what he ordered. The principal controversy related to a table which the defendant claimed was smaller than that which he agreed to purchase. At the conclusion of the hearing the court announced that the plaintiff would have judgment, to which the defendant took exception.

Following the trial the defendant engaged the services of an attorney who entered into correspondence with the Judge of the Barre Municipal Court concerning the final disposition of the case, and the failure on the part of the court to prepare and file findings of fact. The first letter to the judge was dated February 8, 1962. By letter dated February 9, 1962 the defendant's attorney was advised by the court that judgment was entered for the plaintiff on January 10, 1962 and that no findings of fact were made because 'Mr. Norton did not request any.' On February 15, 1962 a formal judgment order was issued by the court and mailed to defendant's attorney. This order stated that, 'Finding of Fact were waived.' Further correspondence was had concerning the fack of findings of fact, and by letter dated February 27, 1962 the court advised defendant's attorney that, 'The Findings of Fact were waived because no appeal was entered within the time allowed.' Copies of the letters between the trial court and the attorney for the defendant are contained in the defendant's printed case, and referred to in the defendant's brief without objection on the part of the plaintiff. In view of this correspondence it becomes apparent that the judgment record wherein it is stated, 'Finding of Fact were waived' does not state the true facts. These letters were certified up to this Court as a part of the record in the case.

The defendant urges that under the provisions of 12 V.S.A. § 2385 it became mandatory on the part of the court below to reduce to writing the facts as found, unless waived by all parties. It is claimed that the failure of the trial court to sign and file written findings of fact constitutes reversible error.

The above referred to section was enacted by the legislature as paragraph 49 of No. 261 of the Public Acts of 1959 and reads in part as follows:

'2385. Findings of fact. All facts found by any tribunal in actions or proceedings tried without a jury upon which an appealable judgment, order, decree or determination is rendered, shall be reduced to writing, unless waived by all parties, and shall be signed by a majority of the members of the court or the presiding officer * * *.'

Under our former practice in county court findings of fact were first required in cases tried by court, before a bill of exceptions was allowed. 12 V.S.A. § 2425. This section, formerly V.S. 47 § 2121 was repealed by No. 261 of the Acts of 1959. Under section 2425 when controversial questions of fact were presented by the pleadings in a case tried by the court, it became the duty of the court to find and state the facts. Wright v. Burbee, 112 Vt. 197, 199, 22 A.2d 494; Hooper v. Kennedy, 100 Vt. 376, 379, 138 A. 778. Although section 2425 applied in terms to county court the same duty was imposed upon a municipal court by virtue of V.S. 47, § 1439, now 4 V.S.A. § 430. Wright v. Burbee, supra, 112 Vt. 199, 22 A.2d 494; Levin v. Rouille, 110 Vt. 126, 130, 2 A.2d 196; Falzarano v. Demasso, 98 Vt. 209, 214, 126 A. 394.

With 12 V.S.A. § 2425 and the above cases in mind, the apparent requirement for findings of fact was to bring forward...