Noe Duchaine v. M. G. Zaetz

• Decision Date: 02 October 1945
• Citation: 44 A.2d 165,114 Vt. 274
• Parties: NOE DUCHAINE v. M. G. ZAETZ
• Court: Vermont Supreme Court

44 A.2d 165

114 Vt. 274

NOE DUCHAINE v. M. G. ZAETZ

Supreme Court of Vermont

October 2, 1945

May Term, 1945.

Scope of Review on Exception to Judgment.

1.In a hearing by court a general exception to the judgment reaches every question involved in the rendition of the judgment and necessary to its validity, but it does not reach back of the findings.

2.In a hearing by court an exception to the judgment raises the question of the sufficiency of the findings to support the particular judgment rendered.Hill v. Scott,101 Vt 356, so far as it may conflict with this holding, overruled.

3.When labor and materials are furnished under a contract silent as to the amount to be paid therefor, the law implies that they are to be settled for at a reasonable rate determined by the prevailing charges for such labor and materials.

4.Every reasonable intendment is to be made in support of a judgment and doubtful findings are to be so read as to support the judgment, if they reasonably may be.

5.The appellate court will presume in favor of a judgment that the court below inferred such facts from those certified up as it ought to have inferred, or as it fairly might have inferred.

6.Error does not appear in the failure to report the evidence used in finding material facts.

CONTRACT for material and labor.Trial by court, Chittenden Municipal Court, Rousseau, Acting Judge, and Brisbin, J Judgment for the plaintiff.

Judgment affirmed.

Louis Lisman for the defendant.

Charles F. Black and J. H. Macomber, Jr., for the plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is an action of contract in the common counts, with a specification showing items for labor and materials to the amount of $ 622.05 and a credit of $ 150.00 for cash received, and showing a balance due of $ 472.05.Trial was by court.In its findings the court recites that the plaintiff seeks to recover the above balance for labor and materials put into defendant's furniture manufacturing plant, and that the defendant in his answer alleges that the plaintiff agreed to do the job for $ 350.00 and that there was a definite contract between the parties.It was found that the plaintiff installed in defendant's plant a ventilator, three feeder boxes and piping to convey materials, and constructed one supply and feed box for a garnet machine and pipe to picker machine, and constructed a louver and did certain other work.Findings 9, 10, 11, 12, 13, 14, and the concluding paragraph read as follows:

"(9) That the defendant was charged according to the prevailing charges for work of this nature.

"(10) That the plaintiff received as payment for this job to date, one check, No. 29148 in the sum of $ 150.00 signed by Leoh Zaetz.

"(11) That the plaintiff has never received any further payment, but that the defendant sent him a check for $ 200.00 which was refused by the plaintiff.

"(12) That from all the evidence introduced by the parties, there was no agreed contract price made by the parties to do this work.

"(13) That the defendant has not met the burden of proof in proving that there was an agreed contract price and the Court so finds.

"(14) That the plaintiff is entitled to recover for labor expended and materials used.

"I find that the plaintiff is entitled to recover the sum of $ 472.05, which is the balance due for labor and materials as shown on plaintiff's specifications filed with this court,..."

Under his exception to the judgment the defendant contends that the findings are insufficient to support the judgment.Before discussing the merits of this exception we will first take up plaintiff's claim that it is unavailing because it fails to specify the grounds upon which it is claimed that the findings do not support the judgment.

A. general exception to the judgment reaches every question involved in the rendition of the judgment and necessary to its validity, but it does not reach back of the findings.Eddy & Co. v. Field, 85 Vt. 188, 81 A. 249;Morgan v. Gould, 96 Vt. 275, 280, 119 A. 517;Mott v. Bourgeois, 109 Vt. 514, 521, 1 A.2d 704;Glass v. Newport Clothing Co., 110 Vt. 368, 372, 8 A.2d 651.As shown by these and the following cases, such an exception raises the question of the sufficiency of the findings to support the particular judgment rendered.Crosby's Admrs. v. Naatz, 98 Vt. 226, 229, 126 A. 547;Royal Bank of Canada v. Girard, 100 Vt. 117, 119, 135 A. 497;Babcock v. Carter, 102 Vt. 137, 146 A. 250;Roberge v. Troy, 105 Vt. 134, 143, 163 A. 770;Greenwood v. Lamson, 106 Vt. 37, 41, 168 A. 915;Finn v. Holden, 106 Vt. 513, 515, 175 A. 231;McNaughton v. Granite CityAuto Sales, Inc., 108 Vt. 130, 132, 183 A. 340;Nelson v. State Highway Board, 110 Vt. 44, 49, 1 A.2d 689, 118 A.L.R. 915;Levin v. Rouille, 110 Vt. 126, 130, 2 A.2d 196;Wetmore v. Hooker Co. Inc., 111 Vt. 519, 523, 18 A.2d 181;Campbell v. Ryan, 112 Vt. 238, 240, 22 A.2d 502;Little v. Loud, 112 Vt. 299, 304, 23 A.2d 628;Schwarz v. Avery, 113 Vt. 175, 180, 31 A.2d 916;Brooks v. Holmes, 113 Vt. 456, 459, 35 A.2d 374.To the extent, if any, that the holding in Hill v. Scott, 101 Vt. 356, 365, 143 A. 276, conflicts with the above it is to be disregarded.The exception is for consideration.

Under his exception to the judgment the defendant argues that the findings are insufficient because there is no finding of the reasonable value of the labor and materials furnished, and because there is no finding that the defendant requested plaintiff's services, or assented to receiving them, or voluntarily accepted the benefit of them.

When labor and materials are furnished under a contract silent as to the amount to be paid therefor, the law implies that they are to be settled for at a reasonable rate.Enos v. OwensSlate Co., 104 Vt. 329, 335, 336, 160 A. 185.The prevailing charges for such work tend to show what the reasonable rate is.Vilas v. Downer, 21 Vt. 419, 425;Winslow v. Fraser, 30 Vt. 522, 525;Davis v. Cotey, 70 Vt. 120, 122, 39 A. 628;Platt, Admx. v. Shields, 96 Vt. 257, 269, 119 A. 520;Enos v. Owens Slate Co., supra.Every reasonable intendment is to be made in support of the judgment, and doubtful findings are to be so read as to support the judgment, if they reasonably may be.Reed v. Hendee, 100 Vt. 351, 354, 137 A. 329;Manchester v. Townshend, 110 Vt. 136, 144, 2 A.2d 207;Campbell v. Ryan, 112 Vt. 238, 240, 22 A.2d 502;Montpelier v. Calais, 114 Vt. 5, 8, 39 A.2d 350.This Court will presume in favor of the judgment that the court below inferred such facts from those certified up as it ought to have inferred, or as it fairly might have inferred.Labor v. Carpenter, 102 Vt. 418, 422, 148 A. 867;University of Vermont v. Wilbur's Estate, 105 Vt. 147, 174, 163 A. 572;Fair Haven v. Stannard, 111 Vt. 49, 53, 10 A.2d 214;Albertson v. Bray Wood Heel Co., 113 Vt. 184, 189, 32 A.2d 125.

The findings recite that the defendant in his answer alleges that the plaintiff agreed to do the job for a definite price and that...