Vermont Salvage Corp. v. Northern Oil Co.
| Decision Date | 03 November 1954 |
| Docket Number | No. 247,247 |
| Citation | 118 Vt. 337,109 A.2d 267 |
| Parties | VERMONT SALVAGE CORPORATION v. NORTHERN OIL COMPANY, Inc., and Trustee. |
| Court | Vermont Supreme Court |
Witters, Longmoore & Akley, St. Johnsbury, for plaintiff.
John A. Swainbank, St. Johnsbury, for defendant.
Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.
This is an action in contract for rent with a declaration in common counts with specification. The defendant filed an answer and a declaration in set-off. Trial was had by jury at the December Term, 1953 of the Caledonia County Court. The verdict was for the defendant. The case is here on the plaintiff's bill of exceptions. The defendant has no exceptions here.
On March 11, 1950 the plaintiff, a junk dealer in St. Johnsbury, Vermont, leased to the defendant, a gasoline and oil distributor from Burlington, Vermont, a filling station adjacent to its junk yard in St. Johnsbury for five years commencing April 15, 1950. The rent was $1,500 a year payable at the rate of $125 each month. The defendant paid the rent specified in the lease from April 15, 1950 to January 15, 1952. The defendant sublet the filling station to the Northern Auto Supply Company of St. Johnsbury who in turn sublet it to one John Gracie. Gracie operated the station for about two months commencing May 1, 1950 and quit. Thereafter the Northern Auto Supply Company operated the station until June, 1951 when it discontinued operating it. The defendant never operated the filling station. The Northern Auto Supply Company paid rent to the defendant through the month of August, 1951 when it ceased to pay rent. On March 11, 1950 the plaintiff was using the filling station premises to store some of its junk and equipment which it agreed to move within thirty days. About the effective date of the lease all the junk and equipment had been removed except two large planers and one large gasoline storage tank. These planers and tank did not interfere with the operation of the filling station but they did prevent the defendant and its subtenant from erecting a fence around a part of the leased premises. Such a fence would have made the filling station premises more attactive and would have set them apart from the plaintiff's junk yard. The plaintiff through its president, who was deceased at the time of trial, promised several times to remove the two planers and tank. Sometime between January, 1951, and early summer that year the plaintiff removed the planers. The tank was removed in July or August, 1951.
The first exception briefed by the plaintiff is to the permitting the president of the defendant corporation to answer the following question: 'Now was there any understanding on March 11, 1950 between your corporation, the Northern Oil, and the Vermont Salvage, regarding what was to happen to this equipment that was on the premises?' The answer was, 'They were to remove all the equipment and junk on the premises within thirty days.'
The plaintiff objected to this evidence on the ground that it was an attempt to vary the terms of the contract, but its claim now is that the word 'understanding' as used in the question was synonymous with 'agreement' and that the question called for a conclusion of the witness. This claim, made here for the first time, is not for consideration. Having specified the ground of its objection, the plaintiff is bound thereby even under V.S.1947, § 1628(I). Lunnie v. Gadapee, 116 Vt. 261, 265, 73 A.2d 312, and cases cited. See State v. Teitle, 117 Vt. 190, 200, 90 A.2d 562.
The next exceptions briefed are to the permitting the defendant to show what it had done in respect to painting and repairing the building on the leased premises. This evidence was admitted as bearing on the question of the damages of the defendant if the defendant showed it was deprived of the use of the building. The plaintiff claims that the jury were permitted to consider this evidence on the question of the damages of the defendant. The charge of the court that the measure of damages of the defendant is 'the difference between the fair rental value of the premises as the defendant had them and the fair rental value of the same premises for the same period had they been free from the plaintiff's junk' did not permit such consideration. The defendant claims the error, if any, in admitting this evidence as to repairs and painting by the defendant was harmless as the plaintiff took no exception to the court's charge on the measure of damages. The failure to except to a charge does not deprive a party of an exception to the admission or exclusion of evidence. Phillips Co. v. Gay's Express, 112 Vt. 49, 55, 20 A.2d 102, and cases cited; Commercial Finance Corp. v. Gale, 105 Vt. 3, 7, 162 A. 899, and cases cited; McSweeney v. Dorn, 104 Vt. 110, 114, 158 A. 88, and cases cited. The test is whether in the circumstances of the particular case it sufficiently appears that the error has injuriously affected the rights of the complaining party. Berkley v. Burlington Cadillac Co., Inc., 97 Vt. 260, 269, 122 A. 665. As the case must be reversed and remanded upon other grounds, it is not necessary to pass upon that question.
The next exception briefed by the plaintiff is to the permitting of the president of the defendant corporation to answer the following questions: 'With the tank and the two planers and other equipment on there, could it have been operated successfully?' This was answered, 'No'. The next question was, 'Why not?' This was answered, 'A service station, to be successful, must be clean and neat and readily accessible and this was not.' This testimony was admitted as bearing on the question of the damages of the defendant. In his brief the plaintiff claims for the first time that the questions asked permitted the witness to express an opinion on a matter that was not proper for opinion evidence. This ground is not available here. Lunnie v. Gadapee, supra; State v. Teitle, supra.
The plaintiff offered to show that the tank and planers could have been moved by the defendant at a cost of fifty dollars. This offer was excluded and the plaintiff allowed an exception. The claim of the plaintiff is that it was the duty of the defendant to use all reasonable means to protect itself from the injurious consequences resulting from the...
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