Neverett v. Towne, 734

• Decision Date: 07 March 1962
• Docket Number: No. 734,734
• Citation: 179 A.2d 583,123 Vt. 45
• Parties: H. L. NEVERETT v. Ernest R. TOWNE.
• Court: Vermont Supreme Court

Page 583

179 A.2d 583

123 Vt. 45

H. L. NEVERETT v. Ernest R. TOWNE.

No. 734.

Supreme Court of Vermont.

March 7, 1962.

R. Allan Paul, Burlington, for plaintiff.

Lee E. Emerson, Barton, for defendant.

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

SMITH, Justice.

This case has been here before. See 121 Vt. 447, 159 A.2d 345. As there stated, it is an action brought against the defendant to recover on three protested checks delivered by the defendant to the plaintiff in an action of tort under the provisions of 9 V.S.A. §§ 2311-2312, commonly known as the 'bad check statute.'

A second hearing in the case has resulted in a judgment for the defendant and the plaintiff has brought his appeal here from the judgment order.

Although no exceptions were taken in the proceedings below to the findings of fact of the lower court, exceptions have been briefed by the plaintiff here to Nos. 1, 4, 12, 13, 14, 15 and part of 16 of said findings. Under 12 V.S.A. § 2385, regardless of the fact that no exceptions or objections were made to any of the findings of the lower court, on appeal this Court will consider questions of sufficiency of evidence to support specific findings if raised by the appellant's brief. Bresette v. Knapp, 121 Vt. 376, 378, 159 A.2d 329.

In order to understand the objections of the plaintiff and the consequent ruling by this Court upon them, it is necessary to present the factual background of the case, as well as the claims of the parties.

Beginning in 1951 and continuing until October, 1954, the defendant bought cattle in New York State from H. L. Neverett and Sons at auction sales. The cattle defendant bought at these sales was invoiced to him by 'Neverett's Livestock Commission Sale, H. L. Neverett and Sons.'

In 1954 the defendant admittedly gave three checks to the plaintiff which were returned to the plaintiff unsatisfied because of insufficient funds in the defendant's accounts in the Vermont banks upon which they were drawn. The three checks were dated respectively July 6, 1954 in the amount of $1240.03, Aug. 17, 1954 in the amount of $1368.37 and Sept. 7, 1954 in the amount of $1425.22. The defendant admittedly knew that he did not have funds to pay these checks in the banks upon which they were drawn at the time of issuance. The plaintiff seeks to recover on these checks under the provisions of the 'bad check' statute.

The defense set up by the defendant here is one of waiver and estoppel. It is the defendant's contention that under an agreement had by way of conversation with H. L. Neverett, and with his son Billy, that plaintiff was informed that the defendant would not have money to cover checks which he might give the plaintiff in payment for cattle. The plaintiff then agreed to make no trouble for the defendant on any such protested checks, but such checks would be regarded only as memoranda of indebtedness and the plaintiff would allow the defendant to work out the amount of any such protested checks that might be given to the plaintiff by the defendant.

The first exception briefed by the plaintiff is to No. 1 of the findings of fact. This reads:

'Since sometime in 1951 and particularly in 1954, the plaintiff, H. L. Neverett was in buiness with his son, Billy Neverett, and did business as H. L. Neverett and Sons. They operated Neverett's Livestock Commission Sales. Auction sales of cattle were held at Ellenburg Depot, New York, and at Chazy, New York on Tuesday and Thursday, respectively, of each week.'

The plaintiff states that this finding is not supported by a preponderance of the evidence and in furtherance of his exception, he cites to us certain evidence offered which he claims indicates that Billy Neverett was not in the commission sales business with his father.

For the reason that all of plaintiff's exceptions to the various findings of fact are based, in large part at least, upon his claims that such findings were against the preponderance of the evidence it should be noted at this point that the only two witnesses as to an agreement and the terms thereof (or the lack of one) relative to the treatment of the checks here in question were the parties themselves. The only other witness in the case was the bookkeeper of the plaintiff, one Collins, whose testimony was confined to actual financial transactions manifested by his records.

Preponderance of evidence refers to a superiority in weight of the evidence. 12 V.S.A. § 2385 states in part:

'Findings of fact shall stand if there is any evidence fairly and reasonably tending to support them. The weight of the evidence and the credibility of witnesses are for the trier of facts to determine and all conflicts shall be resolved against the excepting party.'

A later sentence in the same section provides:

'The exhibits in the case, and the transcript, if furnished, shall be referred to for the purpose of determining whether the findings are supported by the evidence.'

This was our rule even before the enactment of the statute. Bresette v. Knapp, 121 Vt. 376, 159 A.2d 329.

We have, perhaps, used an excess of care in a search of the record to ascertain the evidence to support the finding, for an exception to a finding on the ground that it is against the weight of the evidence is tantamount to a judicial admission on the part of the excepting party that there is evidence to support the finding.

A study of the transcript in the case shows that the defendant testified that he talked with both Mr. Neverett and Billy at the inception of his business dealing with the plaintiff, and that it was Billy Neverett who solicited his business at the cattle sales. He testified as to other conversations separately with Mr. Neverett, as well as with the son, relative to his being allowed to pay off the protested checks by trucking services. He further testified that it was his understanding that Billy Neverett had as much to do with the business as anybody. The invoices received in evidence in the case have the heading of 'H. L. Neverett and Sons.'

The plaintiff admitted that his son was presently in business with him, and that in 1954 the business name was 'H. L. Neverett and Sons', although 'the boys were too young to be in business at the time.'

The real basis for plaintiff's exception to No. 1 of the findings of fact is that the court below, on the conflicting evidence, found in favor of the evidence offered by the defendant. Such determination is a matter of credibility, and the credibility of the witnesses is for the trier of the facts to determine. Upon review in this Court, conflicts of evidence are to be resolved against the excepting party. 12 V.S.A. § 2385; Taylor v. Henderson, 112 Vt. 107, 111, 22 A.2d 318. A study of the transcript and the record of the case before us indicates that there is evidence fairly and reasonably tending to support No. 1 of the findings of fact.

Plaintiff has also attempted to raise the question, under this exception, of an inconsistency in his pleadings because of the facts found in No. 1 of the findings. The inconsistency claimed is that the plaintiff named in the action is H. L. Neverett, while the findings state that the business actually was carried on in the name of H. L. Neverett and Sons. The contention of the plaintiff seems to be that the son, Billy, should have been added as a party plaintiff. This question is not before us under an exception to a finding of fact. The only question presented to this Court on appeal from a finding of fact is the sufficiency of evidence to support a specific finding if raised by the appellant's brief. Bresette v. Knapp, supra. 12 V.S.A. § 2385. We might add, however, that if such inconsistency exists it was to the detriment of the defendant, rather than the plaintiff who seeks to raise it. Plaintiff cannot take advantage of his own error. The plaintiff takes nothing by his briefed exception to No. 1 of the findings of fact.

The next exception briefed by the plaintiff is to Finding No. 4, which reads as follows:

'In 1951 before defendant began his purchases from H. L. Neverett and Sons, defendant had a talk with H. L. Neverett and his son, Billy Neverett, about making purchases at their commission sales, explaining that he did not have much money and might not always have the money to pay his checks. He was told that that could be worked out and that they would use them to show that defendant owed that amount of money. After this talk, defendant began buying cattle at said auction sales.'

Plaintiff's objection to No. 4 as not being supported by the preponderance of evidence is answered by our ruling relative to the same objection advanced to finding No. 1.

The plaintiff also now contends that the action of the trial court in asking questions of the defendant was partial and prejudicial to him. The same contention is also made in other objections to specific findings of fact here briefed by the plaintiff. No objection to such questioning by the trial judge was made below. It is within the authority of the trial judge to propose questions to and examine witnesses for the purpose of eliciting facts material to the case at bar. 53 Am.Jur. Trial, p. 74. The plaintiff takes nothing by this exception.

The next exception of the plaintiff is to Finding No. 12, reading as follows 'Sometime after the check dated July 8, 1954, the defendant had a talk with H. L. Neverett at Ellenburg, New York, which talk was after the time the first check went to protest. At that time Mr. Neverett told the defendant he would not make the defendant any trouble on the check in question. Mr. Neverett told defendant to continue to buy and if he bought on Thursday he would hold the check and would do the same on the next Tuesday's sale.'

The objection of the plaintiff to this finding is that it is against the preponderance of evidence and he cites in support of his contention evidence given by the plaintiff to the contrary. What has been...