Louden Machinery Co. v. Wilhelmina Day

• Decision Date: 18 October 1932
• Parties: LOUDEN MACHINERY CO. v. WILHELMINA DAY
• Court: Vermont Supreme Court

162 A. 370

104 Vt. 520

LOUDEN MACHINERY CO. v. WILHELMINA DAY

Supreme Court of Vermont

October 18, 1932

May Term, 1932.

Agreed Statement of Facts May Not Be Supplemented by Mere Reference to Testimony and Exhibits---Agreed Statement of Facts as Limiting Review in Supreme Court---Sufficiency of Exception to Judgment To Raise Question Otherwise Insufficiently Raised---Principal and Agent---Effect of Limitation of Agent's Authority on Contracts Exceeding Such Authority---Action---Necessity That All Damages Resulting from Entire and Indivisible Cause of Action Be Assessed in One Proceeding---Test for Determining Whether Party Has Single and Entire Cause of Action or Severable Demand---Judgment---Previous Judgment as Bar to Subsequent Action.

1. Facts agreed to by parties cannot be supplemented on review by mere reference to testimony and exhibits, but, if any additional facts are required to support judgment, they should have been found by trial court from evidence presented.

2. Where case was submitted in lower court on agreed statement of facts, and court made no supplemental finding of facts, in Supreme Court judgment must stand or fall on agreed facts and only necessary inferences therefrom can be drawn or considered.

3. Though motion to set aside judgment as erroneous, filed after entry of final judgment, was ineffective to raise any question, held that same questions thus sought to be raised were saved by exception to judgment, and so were for consideration by Supreme Court.

4. Where agreed statement of facts showed that agent only had authority from principal to build barn upon latter's premises, and to procure necessary material and labor therefor, so that as far as plaintiff was concerned agent's powers extended no further than to purchase on defendant's credit ventilating system and to fix price to be paid, held that, agreed statement of facts being silent in relation thereto, agent could not bind defendant for costs and attorney's fees incurred in recovering from defendant on contract for ventilating system.

5. All damages resulting from an entire and indivisible cause of action must be assessed in one proceeding, whether arising from contract or tort.

6. Test for determining whether party has single and entire cause of action, which must be sued for in one action, or has severable demand and may maintain separate suits, depends on whether entire claim arises from same act or contract or from distinct and different acts or contracts.

7. Judgment in action on book account by seller against buyer of ventilating system, including amount of contract price together with freight charges and taxable costs, held bar to subsequent action between same parties on same contract to recover costs of collection and attorney's fees.

8. That plaintiff in suit for breach of contract entitling him to two classes of damages failed to choose appropriate remedy to recover all damages, does not prevent judgment in such action being bar to subsequent action to recover remainder of damages.

ACTION OF CONTRACT. Plea, general issue. Trial by court on agreed statement of facts at the September Term, 1931, Windham County, Davis, J., presiding. Judgment for the plaintiff, and defendants motion to set aside judgment overruled. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant to recover her costs.

Orrin B. Hughes for the defendant.

Herbert G. Barber for the plaintiff.

Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

The action is contract and was heard below by the court upon an agreed statement of facts, and also the testimony of the defendant taken at a previous hearing between the parties which was made a part of the agreed statement by reference. The files and docket entries of the previous trial are by reference made a part of the agreed statement. No supplemental facts were signed and filed by the trial court. Judgment was entered for the plaintiff. The defendant excepted to the judgment on the ground that it was contrary to and not supported by the agreed facts.

The facts agreed to by the parties cannot be supplemented on review by a mere reference to testimony and exhibits. If any additional facts are required to support the judgment, they should have been found by the trial court from the evidence presented. Hooper, Trustee v. Kennedy, 100 Vt. 376, 138 A. 778; People's National Bank v. Brunelle, 101 Vt. 42, 45, 140 A. 160. The judgment before us must stand or fall on the agreed facts, without re-enforcement by any reference to evidence of additional facts. And since the facts of record are stated by agreement of the parties, only necessary inferences therefrom can be drawn, or considered. Hooper, Tr. v. Kennedy, 100 Vt. 314, 317, 137 A. 194; City of Barre v. Town of Bethel, 102 Vt. 22, 25, 145 A. 410; Drew v. Bowen, 102 Vt. 124, 127, 146 A. 254; Grand Lodge, etc. v. City of Burlington, 104 Vt. 515, 162 A. 368. So far as material to the questions presented for review, the agreed facts state that in April, 1929, the defendant engaged one Bernard Dirks as her representative to design and build for her upon her farm in Dummerston a barn, he to procure the necessary material and labor therefor. Dirks gave to the plaintiff an order in writing for a "Louden Automatic Ventilating System" which contained this clause, "Purchaser agrees to pay all reasonable costs of collection of this contract, including attorney's fees." The order was signed, "Bernard Dirks--Purchaser." The plaintiff accepted the order and in compliance with its terms shipped to the defendant the ventilating system, and after the same arrived at the railway station at Brattleboro, it was taken to the defendant's farm in Dummerston by an employee of hers. The defendant claimed that the system was incomplete and not such as was ordered, and for those reasons refused to pay for it according to the terms of the contract. The plaintiff brought an action in book account against the defendant which resulted in a judgment for the plaintiff to recover the amount of the contract price, together with freight charges and taxable costs. The defendant paid the judgment, including the taxed costs, and received from plaintiff's attorney a receipt evidencing payment and satisfaction thereof. Thereafter the plaintiff made claim upon the defendant under the above-quoted special clause of the contract for the expenses incident to obtaining the judgment, including attorney's fees. It is for the recovery of those items that this suit is prosecuted.

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