Pierce v. Mitchell

• Decision Date: 09 May 1914
• Citation: 87 Vt. 538,90 A. 577
• Court: Vermont Supreme Court
• Parties: PIERCE v. MITCHELL.

90 A. 577

87 Vt. 538

PIERCE

v. MITCHELL.

Supreme Court of Vermont. Windham.

May 9, 1914.

Exceptions from Windham County Court; Willard W. Miles, Judge.

Action by John D. Pierce against Vivien E. Mitchell. Defendant's motions for judgment on the pleadings were overruled, and defendant brings exceptions. Affirmed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

E. W. Gibson, A. V. D. Piper, and W. D. Smith, all of Brattleboro, for plaintiff. Herbert G. Barber and Frank E. Barber, both of Brattleboro, for defendant.

TAYLOR, J. This is an action of assumpsit for damages in an exchange of automobiles. The defendant pleaded the general issue and also a former judgment in bar. In reply to the plea in bar the plaintiff alleged in substance that the cause of action on which the defendant obtained judgment was, as set forth in the plea, an action of trespass on the case for deceit, "that the cause of action now pending * * * is one of special assumpsit on contract, and while growing out of the same transaction, * * * although the said representations and promises were not so made as to amount to deceit, they are sufficient to support an action for breach of the contract, * * * and said judgment in said deceit action is in no way a bar to said action now pending between the parties hereto of special assumpsit for breach of the contract." The replication concludes to the country. The defendant filed two motions for judgment: (1) Upon the defendant's second plea and the plaintiff's replication thereto; and (2) upon the pleadings in the cause. The court overruled both motions, to which several exceptions were allowed, and the cause was passed to this court before trial.

The defendant contends that the replication confesses the plea, but does not attempt to avoid the same by allegation of new matter, and closes to the country. He argues that it is no answer to the plea, nor any part thereof, and insists that his motion for a judgment should have been sustained. Assuming, though not deciding, that the court might render judgment on the pleadings in case the replication confesses, but fails to avoid, the plea, it does not follow that it would bé reversible error for the court to deny such a motion. It is a question of practice, addressed to the discretion of the court (31 Cyc. 605); and the rule is too well recognized to require citation of authorities that this court will not review the discretionary action of the trial court, except to correct abuse of discretion. The court below may well have overruled the motions as a matter of discretion. By doing so the court was not committed to the theory that the replication was sufficient. It signified no more than that the court was not satisfied that defects, if any there were, could not be cured by amendment. In the circumstances, it would have been unjust to the plaintiff to render judgment against him on the pleadings, thus depriving him of an opportunity to amend, if necessary, while by denying the...