Manuel Gomez v. Alexander Lawson

• Decision Date: 02 May 1933
• Citation: 166 A. 14,105 Vt. 353
• Parties: MANUEL GOMEZ v. ALEXANDER LAWSON
• Court: Vermont Supreme Court

166 A. 14

105 Vt. 353

MANUEL GOMEZ v. ALEXANDER LAWSON

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Contracts---Effect of Attempt To Rectify Defect in Manufacture---Sufficiency of Evidence To Support Findings of Fact---Witnesses---Credibility---Waiver---Continuance.

1. In action for breach of contract to do certain sand blasting on granite monument, fact that plaintiff, in seeking to satisfy his customer's complaint that sand blast lines did not coincide after monument had been erected, attempted to remedy defect by use of pneumatic tool, held not to relieve defendant from liability for failure properly to perform work.

2. In such action, finding that monument, on which defendant had placed sand blast lines, under contract designating where they should be placed thereon, that they were to be of uniform width, and that there would be no perceptible break in alignment, had, by reason of variation of such lines "an appearance displeasing to the eye," held supported by evidence.

3. In such action, finding that "because of the poor sand blast job on granite monument, it became necessary for the plaintiff to take back the two pilasters and cap," held supported by evidence.

4. Credibility of witness and weight to be given his testimony held matters for triers of fact to decide, and, where there were con-

tradictory statements, it was for them to say which they would accept.

5. In action for breach of contract to do certain sand blasting on granite monument which came from defendant's shed in three pieces, fact that plaintiff before shipping monument to his customer had observed that blast lines were wider than specifications, held not to require finding of an acceptance and waiver of defects by plaintiff, where fact that blast lines were not in alignment was not known to plaintiff until monument was received and set up by his customer, and until after examination as it was set up he discovered such additional defect.

6. Failure of party, hiring another to perform work on granite monument, immediately to protest concerning one defect discovered did not preclude him from claiming damages for breach of contract.

7. Where defendant, making oral motion for continuance on ground of absence of material witness, failed to file affidavits, or give substance of expected testimony as required by county court rule 19, court was justified in denying motion.

8. Granting of continuance lies within discretion of trial court.

ACTION OF CONTRACT. Plea, general issue. Trial by court at the September Term, 1931, Washington County, Sturtevant, J presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

C. O. Granai for the defendant.

Marcell Conway for the plaintiff.

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

OPINION

MOULTON

This action has been brought to recover damages for the breach of a contract to do certain sand blasting on a granite monument. The trial was by the court, which, after making a finding of the facts, rendered judgment for the plaintiff. The case is before us on exceptions by the defendant.

The following facts were found: The plaintiff, who was a manufacturer of granite monuments in Barre, Vermont, sold a monument to one Banks of Wilkesbarre, Pennsylvania, and entered into a contract with the defendant to place sand blast lines upon the base, the two pilasters and the cap. Under this contract, these lines were to run one inch from the edges of the monument, were to be 5/16 of an inch in width, and were to be so placed that when the various pieces were set in place, there would be no perceptible break in the alignment. The work was to be done in a good and workmanlike manner, which required that there should be no more than 1/32 of an inch variation in the width of the lines, and that the distance of the lines from the edge should not vary more than 1/32 of an inch. After the defendant had completed the sand blasting, the monument was shipped to Wilkesbarre and set up. The plaintiff received a complaint, and went to Wilkesbarre, where, on inspection, he found that the lines varied in width from 1/4 to 3/8 of an inch, that the distance from the lines to the edge was not uniform, and varied more than 1/32 of an inch, and that, where the pieces joined, the lines did not meet, and some of them were out of alignment nearly 1/4 of an inch. This gave an appearance displeasing to the eye, and because of the defects above enumerated the sand blasting was not done in a good and workmanlike manner, in accordance with the contract. The plaintiff was obliged to take back the pilasters and the cap, and to replace them with others. He was able to sell the pieces returned, after doing some further work on them. His loss, after allowing credit for this sale, was $ 771.50.

The first exception is one taken to the finding that the lines varied in width, and in distance from the edge, and did not meet where the various pieces of the monument joined, to the extent above mentioned. The only claim briefed is that the evidence showed only two places where the lines did not meet and that in each of these instances the plaintiff himself, during his visit to Wilkesbarre attempted to remedy the defect, by the use of a pneumatic tool, and that the trouble was due to his own act. But the evidence tended to show that the lines did not coincide and were the cause of dissatisfaction before the plaintiff made his unsuccessful attempt to correct the difficulty, and the defendant was not thereby relieved from liability for the failure properly to perform the work. The exception is not sustained.

The defendant excepted to the finding that the monument had, by reason of the variation of the lines, "an appearance displeasing to the eye." The ground of this exception is lack of supporting evidence. True, no witness testified to this, in so many words. But there was testimony, given not only by the plaintiff, but by three experienced granite cutters, that the lines varied in width and direction to such an extent that it was "very noticeable"; that the discrepancies could be seen without measuring the monument; that the general appearance showed that the lines were "rather poorly executed, " and had the effect of "destroying the beauty of the work." There were also photographs showing portions of the monument. On this evidence the finding above mentioned was not an unreasonable inference.

The next exception is to the finding that, "because of the poor sand blast job, it became...