Potwin v. Tucker

• Decision Date: 06 June 1967
• Docket Number: No. 1252,1252
• Citation: 126 Vt. 414,234 A.2d 430
• Parties: Roger and Beverly POTWIN v. Ira O. TUCKER, Viola Tucker and Paul A. Bourdon.
• Court: Vermont Supreme Court

Page 430

234 A.2d 430

126 Vt. 414

Roger and Beverly POTWIN v. Ira O. TUCKER, Viola Tucker and Paul A. Bourdon.

No. 1252.

Supreme Court of Vermont.

June 6, 1967.

Rehearing Denied Oct. 3, 1967.

James W. Wright, Woodstock, for plaintiffs.

John Parker, Springfield, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ. BARNEY, Justice.

The Tuckers changed their minds about selling their home place to the Potwins. As a result, the Potwins obtained a decree of specific performance from the court of chancery, requiring the conveyance of the property to them at the agreed price. Since the Tuckers had, in the interim, conveyed the premises to Paul A. Bourdon, Esquire, he, too, was joined as a party defendant. The defendants bring this appeal.

The matter began on the day when the plaintiffs, the Potwins, and the defendant Tuckers exchanged written acknowledgements of an agreement on the terms of sale of the property, accompanied by a hundred dollar check payable to Mr. Tucker. The instrument signed by both of the Tuckers reads as follows:

We Ira Tucker and Viola Tucker are selling our place in Woodstock Vt to Roger V Potwin for a price of Forty Five hundred ($4500) in cash to us. dated his 25th day of April 1963.

To bind sale we received $100.00 down bal at transfer of title XXXXXXXX Possession to be on or before June 1st 1963.

A similar document, reflecting the Potwin's obligation to buy, was executed at the same time by Mr. and Mrs. Potwin. From the exhibits and testimony it appears that Mr. Tucker cashed and used the check.

Two weeks later, on May 9, the matter became complicated. Mr. Tucker obtained a bank check for one hundred dollars, to use to refund the original payment made by the Potwins. His efforts, and those of his wife, to return the money and regain the agreement were unsuccessful, being matched by refusals of the Potwins to keep the refund or return the agreement. On the same day the Tuckers conveyed their property to defendant Bourdon. The chancellor found that Bourdon, at the time of the transfer to him, knew of the existence of the previous agreement between the Tuckers and the Potwins. All these facts, as found by the chancellor, are adequately supported by evidence and cannot be challenged here. Smith v. Lentini, 125 Vt. 526, 528, 220 A.2d 291.

An initial contention of the defendants is that the signed agreement, set out above, is insufficient as a matter of law to support specific performance. They claim it is a mere receipt. Benoit v. Wing, 117 Vt. 477, 479, 94 A.2d 237, holds an instrument of almost exactly the same form as the one executed in this case is an enforceable contract, under the authority of First National Bank, etc. v. Laperle, 117 Vt. 144, 148, 86 A.2d 635, 30 A.L.R.2d 958. All of the necessary ingredients to support enforceability are present, and the chancellor's determination that the instrument constituted a contract is correct.

This contract is also challenged as to Mrs. Tucker because, it is claimed, there was no consideration running to her. The basis for this contention is that the original one hundred dollar check involved was not made payable to her, along with her husband. It must be admitted that it would have been much easier to establish that the Tuckers both shared in the proceeds if the check had been made jointly payable. But it is only a matter of evidence, and the agreement itself acknowledges that the consideration ran to them jointly, and refutes the defendants' claim. There may well have been further evidence affirming the matter, and other legal consideration, but this is sufficient.

In their pleadings the defendants Tucker claim they were induced to enter the contract by false and fraudulent representations of the plaintiffs, and, further, that the plaintiffs failed to perform their obligations under the agreement within a reasonable time. On each of these grounds the defendants claim the proposed sale could properly be rescinded. In this Court the defendants complain of the chancellor's failure to make findings on these issues.

The evidence offered by them in support of the allegations of fraud came primarily from Mrs. Tucker, with some rather equivocal support from Mr. Tucker's testimony. The brief relies on claims that the Potwins represented that they were buying the property for their own use, rather than resale, and that provision was to be made by the Potwins to take care of the Tuckers' dog. All this was met by strong contradictory testimony from the Potwins.

When judges or chancellors act as triers of the facts, they are bound, of course, to impartially and judiciously weigh and sift the evidence, in order to find and state the facts relevant to the controversy established by the evidence. Pacquin v. Pacquin, 125 Vt. 243, 249, 214 A.2d 90. Some evidence, because it is not only critically relevant, but also is uncontroverted and of undeniable credibility, requires recognition in findings as a matter of law. Gramatan National Bank & Trust Co. of Bronxville v. Beecher, 121 Vt. 39, 47-48, 146 A.2d 246. But in all other aspects the trier is entirely sovereign in his decision as to the facts, if rationally reached from the evidence. Crossman v. Crossman, 124 Vt. 127, 129, 197 A.2d 818. He has the exclusive right to resolve conflicting testimony. Little v. Little, 124 Vt. 178, 182, 200 A.2d 276. In these matters this Court will not trespass.

It is also the duty of the trial court to direct his findings to the issues made by the pleadings. Neverett v. Towne, 121 Vt. 447, 458, 159 A.2d 345. This is not to be taken as compelling findings on such issues irrespective of the existence of supporting evidence. Petition of New England Tel. & Tel. Co., 120 Vt. 181, 193, 136 A.2d 357; see also State v. Rickert, 124 Vt. 380, 385, 205 A.2d 547. It is axiomatic that findings which lack evidentiary support cannot withstand such challenge. Bergeron v. Forger, 125 Vt. 207, 210, 214 A.2d 85. But all parties are entitled to be spared having their litigation...