T. O. Metcalf Co. v. Crossroads, Inc.
| Decision Date | 05 May 1959 |
| Docket Number | No. 1855,1855 |
| Citation | 151 A.2d 307,121 Vt. 147 |
| Parties | T. O. METCALF COMPANY v. CROSSROADS, INC. and Trs. |
| Court | Vermont Supreme Court |
Fayette & Deschenes, Burlington, for plaintiff.
Finn & Davis, Barre, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The plaintiff is a company whose business is printing. The defendant is a merchandiser. The subject matter of this suit concerns a catalog got out by the plaintiff for the defendant. Declaring on the common counts, with specifications, the plaintiff seeks to recover a balance for work done. The defendant claims that the plaintiff's charges are in excess of an agreed limit,--that agreed limitation, or not, their amount is not fair and reasonable. After hearing the evidence, the court below found there was no agreed limitation on the charges, that they were fair and reasonable, and judgment went for the plaintiff accordingly. The defendant is here on exceptions relating to the findings. We will start with those findings which are unquestioned and then proceed to those which are in controversy.
Since 1949 the plaintiff has been printing catalogs and folders for the defendant. Altogether there have been some seventeen of these. It had been the practice of the plaintiff to give the defendant an estimate, in each instance, of what the work would cost, based on the number of copies wanted, the size of the catalog itself and other pertinent factors. Early in 1954 representatives of the defendant started discussions with the plaintiff's president, a Mr. Williamson, looking toward the printing of the defendant's 1954 fall catalog. It is concerning this catalog that the present litigation arose. Eventually these discussions resulted in a letter, dated March 22, 1954, from the plaintiff to the defendant, giving an estimate of the cost of the proposed 1954 catalog. This estimate was accompanied by figures comparing the actual cost of the previous 1953 catalog with the probable cost of the 1954 catalog.
The court found that the estimate just mentioned for the 1954 catalog 'was based on 428 850 catalogs with 24 pages, size 6"' X 9"' inches without color'. To this the defendant excepted on the ground that a portion of the letter sent in connection with the estimate was undisputed evidence to the contrary. With this we cannot agree. The paragraph in the letter referred to mentions color and says that it is a 'precarious matter' to estimate the cost of adding color to the catalog. It suggests figures 'to give some idea of what might be involved' but these figures are not carried into the estimate sheet nor are they reflected in its total. This exception is not sustained.
The findings go on to make clear that the defendant, after having received the estimate mentioned above, 'decided to increase the number of pages in the catalog from 24 to 32 and to increase the number to be produced from 428500 to 547000 and to put some color into the catalog----'. This was discussed with the plaintiff's president. The court also found that: The defendant excepted to this finding on the ground it was not supported by the evidence. Since the defendant apparently relies in this connection upon two items (Defendant's C. and D.) excluded from the evidence, his argument is lacking in support. The finding was warranted as the evidence in the case stood. No error appears.
The court goes on to find that following the defendant's investigation mentioned in finding No. 15 above the defendant, after some discussion with the plaintiff's president, authorized the plaintiff to produce its 1954 catalog. ( No. 16.) Then comes the key finding No. 17: 'There was no fixed or set charge agreed to by the plaintiff with the defendant for the production of defendant's 1954 catalog and there was no agreement by plaintiff that it would meet the Stern & Company quotation of $20,000.00 or that it would produce said catalog for such sum plus the usual charges for extras as claimed by defendant.' The defendant excepted to finding No. 16 on the ground that it is a conclusion of law and on the further ground that that finding and also finding No. 17 were contrary to the evidence.
The gist of the defendant's contention is that there was evidence that the defendant informed the plaintiff that they had allotted $20,000 in their budget for the 1954 fall catalog. This was during the discussion between the parties in the spring. Thereafter the defendant shopped about to see what it could get the work done for. As a result it got a quotation from Stern & Co. of $20,000. According to the defendant, the plaintiff was informed of this fact during a discussion and thereupon the plaintiff's president, Williamson, is claimed to have said: 'If Stern can do it for $20,000.00, we can do it for $20,000.00.' To which the defendant's representative is said to have replied, 'All right, let's go ahead on that basis.' If this were all the evidence bearing on this point, there would be some justification for the defendant's claim that finding No. 16 and No. 17 are not supported by the evidence. However, although the plaintiff's president did not have a very clear recollection of just what was said, he did testify that at no time had the plaintiff agreed to do the job for $20,000. This assertion made the evidence sufficiently ambivalent to bar intervention on our part. We do not weigh the evidence on review. Schwarz v. Avery, 113 Vt. 175, 179, 31 A.2d 916. A finding must stand if supported by any substantial evidence, although there may be inconsistencies or substantial evidence to the contrary. D'Amato v. Donatoni, 105 Vt. 496, 502, 168 A. 564. This is true even where the evidence opposed to the court's finding is seemingly more persuasive than that which supports it. Holton v. Ellis, 114 Vt. 471, 488, 49 A.2d 210.
As we have just seen, the court found that the plaintiff did not undertake to do the job for a definite sum. Moreover the estimate furnished the defendant by the plaintiff is restricted in whatever significance it may have had by reason of finding No. 18 as follows: 'Defendant decided on the increase in the number of pages to 32 sometime in August, 1954 and decided on the number of catalogs to be produced at 547,000 and the addition to color in the catalog after plaintiff began work on the catalog.' An exception to this finding was not briefed and so is waived.
At the end of the job the plaintiff sent the defendants an itemized bill (set forth in finding No. 19) in which its various elements were taken up, analyzed and compared with the plaintiff's estimate. The total amounted to $27,084 as compared to the estimated total of $15,755.50. The plaintiff pointed out that a part of the overrun could be accounted for by the increase in pages and quantity.
Some of the work, as shown by the bill, was sub-contracted. The defendant excepted to finding No. 20 which...
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