New England Road Machinery Co. v. Calkins

• Decision Date: 04 March 1959
• Docket Number: No. 265,265
• Citation: 149 A.2d 734,121 Vt. 118
• Court: Vermont Supreme Court
• Parties: NEW ENGLAND ROAD MACHINERY CO. v. Howard G. CALKINS.

Page 734

149 A.2d 734

121 Vt. 118

NEW ENGLAND ROAD MACHINERY CO. v. Howard G. CALKINS.

No. 265.

Supreme Court of Vermont.

March 4, 1959.

James B. Campbell, St. Johnsbury, for plaintiff.

John A. Swainbank, St. Johnsbury, for defendant.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

ADAMS, Justice.

This is an action of contract with a declaration in common counts and specifications. The defendant filed a general denial and also special matter of defense. A hearing was had by the court, findings of fact were filed and judgment was for the plaintiff to recover a balance due for the first four items of the specifications less an amount that had been paid thereon. The case is here on exceptions of the defendant. The record does not show any exception to the judgment but that omission does not preclude us from considering and disposing of trial questions properly raised and brought before us by a bill of exceptions. State v. Barnett, 110 Vt. 221, 227, 3 A.2d 521, and cases cited.

Findings to which no exceptions were taken show the following material facts;--The plaintiff claimed that the defendant was indebted to it for the first four items in the specifications amounting to $5,075, less a credit of $3,000 paid by the defendant on October 10, 1951, leaving a balance due of $2,075. The plaintiff has its place of business in South Boston and is engaged in designing, manufacture, fabrication and sale of road construction equipment. The defendant is and was at the time of the transaction in question in the contracting business with his principal place of business in Danville, Vt.

By letter, dated July 18, 1951, to the defendant the plaintiff quoted a price of $3,225 for the first two items described as one and two in the specifications. About the middle of August, the defendant called the president and treasurer of the plaintiff company and informed him to proceed with the fabrication and furnishing of these two items. In the same conversation the defendant ordered the item specified as number three in the specifications. On August 15, the plaintiff passed on to its plant in Boston for fabrication and assembly a 'shop-order' for these materials and equipment so ordered by the defendant for the price of $4,790. On or about September 11, the defendant ordered from the plaintiff item four in the specifications at a price of $285 and on September 27, this item was delivered to the defendant's carrier in Boston and was received by the defendant and delivery accepted by him.

The defendant received all of the materials set forth in the first four items in the specifications and has retained and used all of them except the 'steel framework' mentioned in item two of the specifications.

The defendant excepted to findings 10, 13, 14 and 15. The ground of the exception in each instance is that the finding is contrary to the evidence. The following rules apply in considering exceptions to findings on that ground. A finding must stand if there is legitimate evidence fairly and reasonably tending to sustain it; if this is so, the fact that the evidence is conflicting cannot avail the excepting party, for all conflicts must be resolved against him on review; and the weight of the evidence and the credibility of the witnesses are for the trier of the facts to determine, and so, if he finds certain evidence implausible, it is not for us to revise his judgment thereon. We must read the evidence to support the findings, if reasonably possible, when considered as a whole. Sparrow v. Cimonetti, 115 Vt. 292, 297-298, 58 A.2d 875, and cases cited; City of Montpelier v. Bennett, 119 Vt. 228, 231, 125 A.2d 779, and cases cited.

The four findings in question state in substance that about September 1, 1951, the defendant called at the plaintiff's plant in Boston, where he examined the 'steel framework' and approved it except for the width and stated that he desired an 8 foot width instead of 8 foot 6 inches. He was then informed that the frame, to function properly and fit his crusher, must measure 8 feet 6 inches. He then assented to the latter width.

On October 10, a date subsequent to the receipt of the materials in question, the defendant paid the plaintiff by check $3,000. At that time, he evidenced no dissatisfaction with the materials and made no complaint about the materials or workmanship of the 'steel framework.'

On November 27, after the plaintiff company had made numerous requests for the payment of the balance of its account, the defendant wrote the plaintiff that he would return 'the hopper and feed support steel which is $285.00 and the 24"' X 28' conveyor at $1,565.00', stating that if he needed the items in the spring he would get in touch with them, but again made no mention that 'the materials were not suitable for the purpose for which he purchased them, as he now claims.'

From all the evidence, the contract involved was consummated and concluded in Boston.

We spend no time in recapitulating the evidence pertaining to these findings. It is sufficient to say that the record shows ample evidence introduced on behalf of the plaintiff that fairly and reasonably supports them. It is true that some evidence introduced on behalf of the defendant tended to contradict some parts of these findings but, as we have seen, that is not sufficient. Many questions asked of the defendant were answered, 'I don't remember.' The record clearly shows that the trier could well have been justified in feeling that much of the testimony of the defendant was evasive, unsatisfactory and contradictory. In regard to the place of the contract, the record shows that the items were ordered by the defendant by letter or telephone to the plaintiff's place of business in Massachusetts and that they were delivered by the plaintiff to a carrier hired and directed by the defendant to call for and transport them to him in Vermont. When tested by the rules that we have stated, findings 10, 13, 14 and 15 were justified and the exceptions to them are not sustained.

The defendant filed eleven requests to find certain facts, number 7 thereof having five subdivisions. He excepted to the failure of the court to find all of them except number one. In taking this exception he set forth each request verbatim and then concluded as follows;--'The above findings of fact requested by the defendant are supported by the evidence and are relevant to the issues in the case and...