Villa v. Hedge

• Decision Date: 15 March 1963
• Docket Number: No. 10410,10410
• Court: Rhode Island Supreme Court
• Parties: Sylvester E. VILLA v. Henry HEDGE d.b.a. Speed's Sales & Service. Ex.

Page 904

188 A.2d 904

96 R.I. 52

Sylvester E. VILLA v. Henry HEDGE d.b.a. Speed's Sales & Service.

Ex. No. 10410.

Supreme Court of Rhode Island.

March 15, 1963.

Crowe, Hetherington & Chester, Benjamin C. Chester, Pawtucker, for plaintiff.

John M. Booth, Providence, for defendant.

CONDON, Chief Justice.

This is an action of assumpsit which was tried to a jury in the superior court after the plaintiff's motion for a summary judgment on the pleadings was denied. The jury returned a verdict for the plaintiff in the sum of $2,000 plus interest, and thereafter the defendant filed a motion for a new trial which was denied. The case is here on his bill of exceptions to that decision, to several evidentiary rulings, to certain portions of the charge, and to the refusal of two requests to charge.

The plaintiff based his cause of action on a written agreement, a copy of which he annexed to his declaration and made a part thereof. The declaration alleges that he and defendant were partners engaged in operating a garage and gasoline station and in buying and selling automobiles under the name of 'Speed's Sales & Service' until April 8, 1958, when they agreed to dissolve the partnership.

The declaration also alleges that they executed a dissolution agreement in writing under which plaintiff agreed to sell and defendant agreed to purchase all the assets of the partnership and to assume all of its liabilities. It further alleges that by the terms of the agreement defendant was to pay plaintiff $3,000 in cash and a further sum of $2,000 in equal annual payments of $500 with the express provision that failure to make any such payment when due would render the whole amount due and payable forthwith.

The plaintiff avers that he sold, transferred and assigned all the assets as therein agreed to defendant. He further avers that defendant on his part has failed to make the first annual payment which was due on October 8, 1958, and therefore the full amount of $2,000 became due and payable, which amount defendant has refused to pay.

The defendant filed the general issue plea of non assumpsit, but apparently he did not intend to deny thereby the agreement alleged in the declaration nor the alleged breach thereof. On the contrary he filed an affidavit of defense which substantially admitted the agreement and plaintiff's transfer of all partnership assets to him. But it further alleged that plaintiff after such transfer removed from the partnership premises certain articles of personal property belonging to the partnership to the value of $1,200. On the basis of such allegation defendant claimed plaintiff was indebted to him in the sum of $1,200 as an indebtedness arising out of plaintiff's same cause of action.

The office of an affidavit of defense is to preclude entry of a summary judgment by showing to the satisfaction of the court that there is a substantial question of fact in dispute. Henry W. Cooke Co. v. Sheldon, 53 R.I. 101, 164 A. 327. The defendant's affidavit does not dispute the essential allegations of the declaration. Rather it confesses them and introduces new matter, namely, a tortious taking by plaintiff of some of the transferred property, for which defendant claims damages. However, the affidavit evidently satisfied the court and therefore the motion was denied. The case thereupon proceeded to trial ostensible on the general issue but in reality on the merits of defendant's affidavit of defense. In the course of the trial it very soon developed that the parties were in contention only over the new facts alleged in such affidavit.

Without objection on the part of plaintiff, defendant appears to have relied upon the affidavit as in the nature of a plea in set-off or recoupment. Recoupment implies that the plaintiff has a cause of action and goes only to mitigation of his demages. 80 C.J.S. Set-Off and Counterclaim (Recoupment) § 2, p. 5. It is a defense which arises out of some feature of the transaction upon which his action is based. Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421. Only by treating the affidavit here as in the nature of a plea of recoupment could defendant introduce evidence charging plaintiff with indebtedness for taking articles from the garage after he had sold and transferred all the assets of the partnership. He could not do so under the general issue plea of non assumpsit. Arava v. Bebe, 48 R.I. 478, 139 A. 302. Although a plea in set-off or recoupment is not in all respects a plea of confession and avoidance, Stern & Co. of Rhode Island v. J. P. Brady Co., 83 R.I. 246, 115 A.2d 523, we think the affidavit of defense here is to all intents and purposes such a plea. It substantially admits plaintiff's cause of action and raises a new issue on which defendant relies to reduce the damages laid in the declaration.

At the outset of the trial on the merits while plaintiff was testifying concerning conversations between him and defendant as to the details of the dissolution agreement and as to what he, plaintiff, planned to do after the dissolution his counsel elicited the following testimony over defendant's objection. '42 Q. And this was agreed between the two of you? A. But we had many, many verbal discussions between the two of us, what we would do, what figures we would arrive at about how we was to go about it, and, of course, those things were not put on paper.' '49 Q. I will ask you whether or not it was contemplated when you men were discussing these things, was it contemplated and discussed betwen you two men that Mr. Hedge would get this real estate and these cars? A. Yes.' '50 Q. And parts? A. Yes.' '56 Q. In discussing dissolution with Mr. Hedge and prior to any final agreement, did you discuss with him and tell him you had located such a place? A. Yes.' '58 Q. Now, was there any discussion between you and him with reference to how you would equip this place? * * * A. No, I don't remember.'

The defendant contends under his exceptions 1, 2, 3 and 4 that such testimony was inadmissible because it was an attempt to vary or contradict the written dissolution agreement in violation of the parole evidence rule. In our opinion the questions and answers themselves refute such contention. Obviously the responses of the witness do not tend to vary or contradict the agreement. Indeed the answers to questions 49 and 50 tend rather to confirm it, and those in response to questions 56 and 58 do not relate to any matters contained in the agreement. There was no error in the trial justice's rulings and therefore defendant's exceptions thereto are overruled.

At the conclusion of the evidence defendant presented certain requests to charge. Requests numbered 1 and 3 were refused. Such refusals are the subjects of defendant's exception numbered 7. Request numbered 1 reads as follows: 'If you shall determine that the defendant is indebted to the plaintiff in any sum, you shall consider the testimony as presented by the parties as to the taking of the...