Richard Hayden v. Joseph Lavallee Et Ux
| Decision Date | 03 October 1950 |
| Docket Number | 355. |
| Parties | RICHARD HAYDEN v. JOSEPH LAVALLEE ET UX |
| Court | Vermont Supreme Court |
May 1950.
ACTION OF CONTRACT to recover real estate broker's commission. Trial by court, Chittenden County Court, September Term 1949, Chase, J., presiding. Judgment for the defendants.
There is no error. Judgment affirmed.
Philip R. MacCausland for the plaintiff.
Russell F. Niquette for the defendants.
Present SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.
This is an action of contract. Trial was by court without a jury and judgment was for the defendants. The case is here on the plaintiff's exceptions.
The declaration is in common counts with specifications seeking to recover $ 725.00 as a commission of 5% on a total purchase price of $ 14,500.00 for procuring a purchaser of a farm and personal property owned by the defendants.
The written findings of fact show in substance the following:-- The plaintiff was a duly licensed real estate broker; the defendants are husband and wife; on or about May 20, 1947 they authorized the plaintiff to sell their farm and personal property thereon for $ 14,500.00, the plaintiff to receive a 5% commission if he sold the property; no time within which the sale was to be made or the purchaser pay the purchase price or accept the deed was specified; on or about October 20, 1947, the plaintiff showed the property to Percy McElligott of Lachine, Quebec, who made a deposit of $ 50. and the plaintiff advised the defendant, Joseph Lavallee, that he had sold the property to McElligott and had taken a deposit subject to financing; on the same day McElligott applied to The Burlington Savings Bank for a loan of $ 8,500. and the bank approved a loan for $ 8,000. and notified the plaintiff thereof prior to October 27. The court further said in the findings; No. 15 "We are unable to find that McElligott ever had or could have obtained $ 14,500.00 at any time subsequent to October 20, 1947".
The plaintiff has briefed an exception to the finding that the bank approved a loan for $ 8,000. on the ground that it is contrary to the evidence. He relies upon Neill v. Ward, 103 Vt. 117, 160, 153 A. 219, wherein it is stated that when a witness distinctly and positively testifies to a fact and is not contradicted and there is no circumstance shown from which an inference against the fact testified to can be drawn the fact can be taken as established. It is true, as the plaintiff claims, that the witness, McElligott, testified that he applied for a loan of $ 8,500. and it was approved. But the evidence was that his information as to the application being approved was communicated to him by the plaintiff and not by the bank. The testimony of an officer of the bank was that the loan was tentatively approved for about $ 8,000. and that fact was communicated to the plaintiff. Furthermore the letter, plaintiff's exhibit 1, shows that the loan to be approved by the bank would not amount to that expected by the proposed purchaser. The testimony of the witness on this point was not positive and direct and did not stand uncontradicted. Neill v. Ward does not apply.
The credibility of the witnesses and the weight to be given their testimony is not for us, but for the trial court to determine. Colby's Executor v. Poor 115 Vt. 147, 153, 55 A.2d 605; Utley v. Town School District of Woodbury, 110 Vt. 522, 526, 9 A.2d 117. If a finding can be supported upon any rational view of the evidence it must stand. Taylor v. Henderson & Smith, 112 Vt. 107, 114, 22 A.2d 318; Colby's Executor v. Poor, supra; see also Sparrow v. Cimonetti, 115 Vt. 292, 297, 298, 58 A.2d 875. ...
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