Stevens v. Cross Abbott Co.
| Decision Date | 05 October 1971 |
| Docket Number | No. 12-71,12-71 |
| Citation | 283 A.2d 249,129 Vt. 538 |
| Parties | Edward STEVENS d/b/a Stevens Electric Service v. CROSS ABBOTT COMPANY et al. |
| Court | Vermont Supreme Court |
Parker & Richards, Springfield, for plaintiff.
Black & Plante, White River Junction, for Cross Abbott Co. and Abbott Realty Corp.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
Appellant-defendants Cross Abbott Company (hereinafter termed Cross) and Abbott Realty Corporation (hereinafter termed Abbott) are owners and operators of a grocery chain known as Super Duper Supermarkets. On July 24, 1967, Abbott and Springfield Realty Corporation (hereinafter termed Springfield) entered into a written agreement by which Springfield agreed to lease space to Abbott for a supermarket in a building to be constructed on its premises at the Shopping Plaza in Springfield, Vermont. The plaintiff furnished labor and electrical materials for the wiring and hookup of Abbott's refrigerative equipment installed in the building. The amount of plaintiff's bill was $4326.43. On February 3, 1969, plaintiff brought suit on the common counts with specifications against all three companies.
Defendants Cross and Abbott each pleaded a general denial. In addition, Abbott alleged non-liability on the ground that it was the obligation of Springfield under its lease with Abbott to 'Provide all Wiring and Connections for, and hook-up, Equipment throughout.' Defendant Springfield failed to enter a plea or answer to plaintiff's complaint. And none of the defendants filed a cross-claim or complaint against its codefendants.
On December 4, 1969, eleven months after suit was brought, plaintiff filed a request quest for admissions of facts which again showed the specifications of his claim in detail. On December 8, 1969, Cross and Abbott admitted in writing that the plaintiff supplied the materials and labor claimed by the plaintiff.
On December 9, 1969, Springfield replied to plaintiff's request denying the matters of which an admission was requested by the plaintiff and set forth 'the reasons why it cannot truthfully admit those matters.' First, it stated it had no contract with the plaintiff for the materials and labor set forth in plaintiff's request for admissions. Secondly, it claimed, on information and belief, that the labor and materials 'were contracted for, and ordered, by one of its codefendants, Cross Abbott Company or Abbott Realty Corporation, for the connections of its or their electric appliances, freezers, coolers or other equipment to be used by either or both of said codefendants in and about the premises described as the Super-Duper Market.'
The case came on for trial by court on March 25, 1970. Before the introduction of evidence, counsel for each defendant agreed that the plaintiff had done the work and supplied the materials as claimed. Counsel for defendants Cross and Abbott then moved that defendant Springfield 'be defaulted' since it had failed to file a general denial or an answer to the complaint and specifications within the time fixed by the rules then in effect and the statutes. 12 V.S.A. § 1021; T. 12, App. II, R. 14.
Counsel for Springfield took the position at the time of trial that what it said in its reply to plaintiff's request for admissions was an affirmative defense and placed its codefendants on notice. The codefendants argued that it was not the function of admission to take the place of affirmative pleadings and that Cross was under no obligation to answer Springfield's reply to plaintiff's request.
The document filed on December 9, 1969, by Springfield was a reply to the plaintiff's request for admissions and not a plea or answer to plaintiff's complaint. Neither can it be considered an affirmative defense to plaintiff's complaint under 12 V.S.A. § 1024. Furthermore, what was stated in Springfield's reply did not have the necessary ingredients to constitute a cross-action against the codefendants and the required procedure was not followed.
The court in treating the motion stated, 'I'm going to take the position this (sic) is judgment for the plaintiff then ask the two of you to present evidence and arguments as to which of you is liable.' It is apparent that the court did not excuse either Abbott or Springfield from liability.
The defendants had each acknowledged the debt due the plaintiff, having stipulated in open court that the work and the materials had been furnished as set forth in the specifications. Liability was thus settled at that point in the proceedings, but which defendant was legally responsible for the payment of plaintiff's bill was an undetermined issue. The appellant conceded on argument that the case was tried on this theory.
In ruling as it did the court, in effect, regarded the real issues as being the cross claim between the codefendants. None of the parties objected to the procedure proposed by the trial court. It is apparent that they adopted and agreed to the theory expressed by the court since they proceeded immediately with trial and introduced evidence on their respective claims. As to pleading a cross-claim against a co-party, see Rule 13, Vermont Rules of Civil Procedure.
Although defendant Springfield had not filed any answer or pleading to plaintiff's action, its position was clear by its answer to the motion for admission filed several months before trial. Under the circumstances in this case, the situation was governed by what Chief Justice Moulton stated in Vaillancourt v. Dutton, 115 Vt. 36, 37, 50 A.2d 762, '* * * it is a well established principle that although as a general rule cases are tried upon the issues made by the pleadings, such issues may be limited or enlarged by the conduct or agreement of counsel for the parties who may thereby waive any question respecting the sufficiency of the pleadings to make available an issue not properly pleaded.'
The claim of Abbott raised the issue of whether the electric wiring done by the plaintiff was the obligation of Springfield under the terms of its lease agreement with Abbott. The claim of Springfield raised the issue of whether the work was contracted for and ordered by its codefendants.
The appellants contend the refusal of the court to grant their motion that codefendant Springfield be defaulted was error. Neither defendants Cross or Abbott had filed a cross complaint or action against Springfield. Any neglect or failure of Springfield to answer plaintiff's complaint, under the state of the pleadings, could enure only to the benefit of the plaintiff. Springfield's codefendants cannot cast themselves into the position of the plaintiff in order to take advantage of, or assert, any right he had in this respect. See Vinal v. Burrill, 18 Pick. 29 (Mass.) where it was held that one defendant may not pray for a default judgment against codefendants. This exception of the appellants is not sustained.
The appellant contends that the lease agreement establishes the liability of Springfield for plaintiff's bill. The written contract between Abbott and Springfield entitled 'Outline of Requirements for a Super Duper Market' provided, among other things, that the builder, Springfield, was to:
* * *'
The Outline of Requirements also provided that the tenant, Abbott, among other things would:
Defendant Springfield employed the plaintiff as its general electrical contractor to do the electrical wiring required to be done under the contract. While the construction work was in progress, Abbott's vice-president in charge of maintenance and engineering, Mr. Henneberger, talked with Springfield's president, Mr. Young, about an electrician to do the wiring for the equipment. As a result of this, Henneberger arranged with Stevens to do the necessary wiring to hook-up coolers, refrigerator cases and other equipment. Stevens was told to send his bill each week to Cross, as he was not then sure who was to pay Stevens for this particular work. Later Henneberger by a telephone call and letter notified Stevens that...
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