Neverett v. Towne

• Decision Date: 02 March 1960
• Docket Number: No. 730,730
• Citation: 159 A.2d 345,121 Vt. 447
• Parties: H. L. NEVERETT v. Everest R. TOWNE.
• Court: Vermont Supreme Court

Page 345

159 A.2d 345

121 Vt. 447

H. L. NEVERETT v. Everest R. TOWNE.

No. 730.

Supreme Court of Vermont.

March 2, 1960.

N. Henry Press, St. Albans, for plaintiff.

Lee E. Emerson, Barton, for defendant.

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

SMITH, Justice.

This is a tort action brought under the provisions of §§ 8329 and 8330, V.S. 47, now 9 V.S.A. § 2311 and § 2312, on three checks delivered by the defendant to the plaintiff.

Sec. 8329 of V.S. 47 reads:

'A person who makes, draws, utters, or delivers a check, draft or order for the payment of money upon a bank or other depository, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon presentation, and which is not paid in full upon presentation, shall be liable in an action of tort on this statute, to the person injured thereby and for want of property, the body of the person so making, drawing, uttering or delivering such check, draft or order may be attached.'

Sec. 8330 of V.S. 47 reads:

'As against the maker or drawer thereof, the making, drawing, uttering or delivery of such check, draft or order, the payment of which is refused by the drawee for the reason that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon its presentation, shall be prima facie evidence of knowledge at the time of such making, drawing, uttering or delivery that the maker or drawer did not have sufficient funds in or credit with such bank or other depository for the payment of such check, draft or order in full upon its presentation, unless such maker or drawer shall pay such check, draft or order, with all costs and protest fees, within eight days after receiving notice that the same has not been paid by the drawee.'

The action was brought in the Lamoille County Court; hearing was had before the Court and a judgment was entered for the plaintiff in the amount of Four Thousand Ninety-five Dollars and Sixty-two Cents, plus bank protest fees, interest and costs. At the time of entering judgment, the Court found that the cause of action arose from the wilful and malicious act or neglect of the defendant, and that the defendant ought to be confined in close jail.

The Findings of Fact made below, omitting the Findings to which exceptions were taken, disclose the following facts in the case. The plaintiff, a resident of the State of New York, is the owner and proprietor of a cattle commission sales establishment doing business in Chazy and Ellenburg, both in the State of New York. The defendant, a Vermont resident, purchased cattle from the plaintiff and trucked cattle for customers of the plaintiff, who paid for such services to the plaintiff, for the benefit of the defendant.

The defendant was a regular customer of the plaintiff at the auction sales held by the plaintiff from 1951 until the Fall of 1954, and bought many thousands of dollars worth of cattle from the plaintiff during that period. The defendant paid for his purchases of cattle by delivering checks to the plaintiff drawn on Vermont banks.

Some of the checks so given by the defendant to the plaintiff were returned to the plaintiff, unpaid, because of insufficient funds in the Vermont banks. The defendant made some of these worthless checks good to the plaintiff by replacing them with other and good checks.

One such protested check was replaced by a promissory note from the defendant to the plaintiff, in the amount of Twenty-one Hundred Dollars, and the note was placed with a bank in Plattsburgh, N. Y. by the plaintiff.

The defendant would pay Twenty-five Dollars per seek on this note to the bookkeeper of the plaintiff. Such payments were made by the defendant in cash; by adding this sum to checks given for the payment of cattle, and, on at least two occasions, by credits collected by the plaintiff, but due the defendant, for trucking services done for other customers of the plaintiff. The bookkeeper of the plaintiff would wait until he had total payments from the defendant of One Hundred Dollars in his possession and then would make such payment to the Bank. This note was paid in full at the Bank, and was returned to the plaintiff, but the plaintiff has not turned it over to the defendant.

The business procedure between the parties was that the defendant would give a check to the plaintiff at the conclusion of each sale between them. These checks, after a delay of a few days, would be deposited for payment in the usual course of his business by the plaintiff in the same manner as other checks received by him.

The checks upon which this action relies were all drawn by the defendant upon the Lamoille County Savings and Trust Co., a Vermont bank, located at Hyde Park, Vermont. The first check, in the amount of One Thousand Two Hundred Forty-two Dollars and Three Cents, was delivered by the defendant to the plaintiff on July 8, 1954. The second check in the amount of One Thousand Ninety-three Dollars and Thirty-seven Cents was delivered on August 17, 1954, and the third check in the amount of One Thousand Four Hundred Fifty Dollars and Twenty-two Cents was delivered by the defendant to the plaintiff on Sept. 7, 1954. The three checks were protested and returned to the plaintiff because of insufficient funds in the bank with which to pay them. They have not been paid by the defendant and suit was brought in the lower court by a writ dated July 17, 1955.

During the time covered by the checks in litigation, the defendant gave the plaintiff nine other checks varying in amount from Two Hundred and Ninety Dollars and Forty-eight Cents to Two Thousand Two Hundred Fourteen Dollars and Twenty-two Cents which were paid on demand. Prior to suit, but after payment had been refused on the three checks set up in this action, trucking credits to the amount of Six Hundred Eighty Dollars accrued to the benefit of the defendant in the hands of the plaintiff. This trucking was done by the defendant at various dates but ending on March 17, 1955. Defendant has not received the amount of such trucking credits.

It is not disputed that the defendant knew, or should have known, at the times that he gave the checks named in this action that he did not have sufficient funds in the bank to honor the various payments.

The defendant first entered a special appearance in this matter and moved that the action be dismissed on jurisdictional grounds. He has briefed his exception to the refusal of the Court to grant his motion on the ground that the plaintiff has not declared the statutes upon which his action is predicated in his complaint and that therefore, the action is void.

An examination of the plaintiff's declaration discloses that while no direct reference is made to the statutes under which the recovery is sought, it is drawn in tort, which the defendant concedes, and that it contains all the essential allegations to bring it under the provisions of V.S. §§ 8329 and 8330. No direct reference to the statute upon which recovery is sought is necessary if the declaration sets up all the facts required to make a case thereunder. Mason v. Chase, 118 Vt. 369, 373, 111 A.2d 246 and cases there cited. No error is found in the overruling of the motion to dismiss.

There being no ad damnum clause on his original declaration the plaintiff moved to amend the same by adding such a clause to the effect that his damage was in the amount of Four Thousand Five Hundred Dollars. To the granting of this motion by the lower court the defendant took an exception, it being his contention that the declaration without such ad damnum clause was void, and not capable of being amended.

Our rule is that pleadings may be amended in substance at any state of the proceedings, in the discretion of the court. Vaillancourt v. Dutton, 115 Vt. 36, 38, 50 A.2d 762. And the statute so permits. 12 V.S.A. § 1132. Voidable process is amendable, void process is not. Town of Barton v. Town of Sutton, 93 Vt. 102, 104, 106 A. 583. The test is whether the amendment introduces a new cause of action. City Electrical Service & Equipment Co. v. Estey Organ Co., 116 Vt. 435, 436, 77 A.2d 835. Damages in the cause before us could be inferred from the amounts of the checks set forth in the declaration. No new cause of action was sought to be introduced by adding an ad damnum clause. It has long been held by this Court that a writ and declaration, wanting in nothing but an ad damnum clause is amendable in that particular. Lamphere v. Cowen, 42 Vt. 175, 176.

However, the defendant contends that even if it be found that the declaration does set forth a case under the statute, and that adding the ad damnum was permissible, there is still no cause of action here under the statutes sought to be applied because the plaintiff is seeking to give the statutes extra-territorial effect. It is the defendant's argument that because the checks were delivered by the defendant in a foreign jurisdiction, the State of New York, that the action here brought must be decided upon the laws of that jurisdiction, rather than those of the State of Vermont. He cites in support of his position on the matter the cases of Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 109 A.L.R. 474, and Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701.

Both cases cited are actions of contract on notes which the Court found were executed in another state. The Coral Gables case states that although the rights of the parties on the note, made in Florida, are established by the laws of that state, that when the plaintiff seeks his remedy in this state, under our laws, it must abide by our laws. Although we do not believe it applicable to the case before us it would seem to be cold comfort to the defendant if it...