Temple v. Duffy

• Decision Date: 17 May 1922
• Citation: 117 A. 101,96 Vt. 114
• Parties: ROBERT D. TEMPLE v. RAYMOND S. DUFFY ET AL
• Court: Vermont Supreme Court

117 A. 101

96 Vt. 114

ROBERT D. TEMPLE v. RAYMOND S. DUFFY ET AL

Supreme Court of Vermont

May 17, 1922

January Term, 1922.

ACTION OF CONTRACT. Pleas, the general issue and breach of contract by plaintiff. Trial by jury at the March Term, 1921, Rutland County, Moulton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

John S. Dorsey and Clayton H. Kinney for the defendant.

Jones & Jones and Walter S. Fenton for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

The plaintiff is a farmer and dairyman, chiefly employed in producing whole milk from his dairy. The defendant is a dealer in whole milk, engaged in purchasing reselling and delivering the same to consumers, and to others to be sold to consumers, all of which was well known to the plaintiff.

The plaintiff demands damages for the breach of an alleged verbal contract--which contract his evidence tended to show--by which he agreed to sell and deliver to the defendant, and the defendant agreed to purchase and receive from him, all the whole milk produced from the plaintiff's dairy during the period of one year beginning August 15, 1920, at an agreed price per hundred pounds during certain specified months, and at another agreed price during the other months.

It appeared that the plaintiff delivered to defendant milk from his dairy from the day above named to January 26, 1921, inclusive, and received payment therefor; that on the 19th day of the last named month defendant notified plaintiff that after the 26th of that month, he would receive no more milk from the plaintiff; and that after the latter date no milk was delivered or tendered by plaintiff to the defendant.

Defendant's evidence tended to show that the contract or understanding, under which the milk was to be and was delivered to him by plaintiff, contained no provision as to duration, nor as to the price to be paid; and defendant therefore claimed that the contract might be terminated by either party upon reasonable notice, and was so terminated by him on the 26th day of January, 1921; and he also claimed that his evidence tended to show that the milk from plaintiff's dairy was, during all the time it was delivered to him, dirty and unfit to be sold and delivered to consumers, in that it contained foreign animal and vegetable matter, and did not contain all the strippings, so-called, as required by law, from the cows from which the milk was taken, and that the milk was below the standard as to cream and butter fat; further claiming that by reason of such dirty and unfit quality of the milk, he might properly terminate the contract or agreement, notwithstanding the terms thereof should be found to be as claimed by the plaintiff.

Defendant's evidence further tended to show that during some or all of the time the plaintiff was delivering milk to defendant, part of the strippings from the cows from which the milk was taken, was used by plaintiff and his employees, and was not mixed with the milk so delivered, and that such fact was not known to defendant until after the 26th day of January, 1921. Defendant claimed that if a part of the strippings were retained by the plaintiff and his employees, and were not in the milk offered or delivered by the plaintiff to the defendant, no recovery could be had in this action.

The evidence of the plaintiff tended to show that in some instances the cows, when milked by the machine, did not give all their milk, and it was necessary to complete milking them by hand; that there were at times from one to three or four cows which could not be milked by the machine, but were milked into the same pail into which other cows had been stripped; that at times the milk provided for the employees was taken from this pail, at times it was taken from the milk cans, and at other times some was taken from the pail and some from the cans, but that the plaintiff himself was wholly ignorant of this fact; and that at no time was any considerable portion of the strippings taken by the employees.

The jury returned a general verdict for plaintiff to recover $ 565.50 damages, divided into special verdicts as follows: For damages from January 27, 1921, to March 1st, $ 313.00; for damages accruing and to accrue between March 21st and August 15th, $ 192.50. And to cover item of depreciation of separator, $ 60.00. The defendant seasonably moved that the verdicts, general and special, be...