Villeneuve v. Bovat, 103-69
| Decision Date | 03 February 1970 |
| Docket Number | No. 103-69,103-69 |
| Citation | 128 Vt. 345,262 A.2d 925 |
| Parties | Richard VILLENEUVE v. Lemond and Doris BOVAT. |
| Court | Vermont Supreme Court |
Gravel, Bing & Shea, Burlington, for plaintiff.
Richard Gadbois, St. Albans, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This litigation comes down to a rather orthodox suit for specific performance of a written contract for the sale of described lands. Unless some countervailing equitable consideration exists, the relief sought is usually granted as a matter of course. Fowler v. Sands, 73 Vt. 236, 237, 50 A. 1067. In this case the chancellor denied the remedy, and we must reverse.
The proceedings below were rather unnecessarily complicated by the election to carry foward the action at law for damages and the later equitable action simultaneously, in the name of consolidation. The pursuit of the remedy of specific performance operated to supercede the action at law, and placed the matter firmly in equity as to all relief. Olcott v. Southworth, 115 Vt. 421, 425, 63 A.2d 189. The presence and participation of the assistant judges in that jurisdictional area were unnecessary, and may be treated as surplusage.
There is remarkably little dispute between the parties as to the facts. About two-thirds of the thirty-odd requests for findings and by both sides were couched in identical language. Several others recognize identical facts. The plaintiff complains that the chancellor's findings do not reflect the issues or sufficiently report the essential facts as understood and requested by both sides. However, having both the requests and the findings before us, we are able to reach the issues of the appeal. See In re Watkins' Estate, 114 Vt. 109, 130, 41 A.2d 180, 157 A.L.R. 212.
The contract signed by the plaintiff as buyer and the defendants as sellers described the boundaries of the land to be transferred. The plaintiff gave a check for five hundred dollars as a down payment, and the defendants promised to give a warranty deed of the property in exchange for the balance of the purchase price, in thirty days. The land was a part of lands owned by the defendants, and it was necessary for them to have it released from an FHA mortgage. In the meantime, before the thirty-day period had elapsed, the plaintiff discovered some misdescription of the lands conveyed to the defendants by their previous grantors. He suggested that this be corrected by a new deed from these grantors, and drafted such a proposed deed and letter of explanation to be sent to them in Maine. Since the defendants had been told by their mortgagee that there was no defect in their title, they were reluctant to send on the corrective deed, but finally did so. It came back signed, but unwitnessed. By this time the thirty-day period had passed. Within that time the plaintiff had offered to close the transaction without waiting for the corrective deed, or the partial release of the mortgage. May 17, 1968, was the end of the original contractual period, and both sides agree that that limitation was waived. But, again, prior to July 1, 1968, the plaintiff requested that the defendants carry out the contract, this time by signing the deed and putting it and his check for the balance of the purchase price in escrow until the partial release was obtained. The partial release awaited merely a proper description which the defendants were now saying could only come from a properly executed corrective deed. It was the defendants' position, at this point, that it was up to the plaintiff to obtain the corrective deed, and they refused to convey without it. The plaintiff brought suit, first claiming damages for a lost sale of part of this property, and then asking, also, for specific performance.
The only objection to performance interposed by the defendants, and...
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Soucy v. Soucy Motors, Inc.
...296 (1981); Nugent v. Shambor, 138 Vt. 194, 413 A.2d 1210 (1980); Kelly v. Rhodes, 136 Vt. 534, 396 A.2d 130 (1978); Villeneuve v. Bovat, 128 Vt. 345, 262 A.2d 925 (1970). These cases have found either that the participation of the assistant judges was unnecessary and may be "treated as sur......
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Solomon v. Atlantis Development, Inc., 403-81
...of assistant judges in a case involving equity was mere "surplusage" and not reversible error. See, e.g., Villeneuve v. Bovat, 128 Vt. 345, 346, 262 A.2d 925, 926 (1970) (suit for specific performance; presence and participation of assistant judges was "unnecessary, and may be treated as su......
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Monti v. Town of Northfield
...the assistant judges in this particular jurisdictional area was unnecessary and should be regarded as surplusage. Villeneuve v. Bovat, 128 Vt. 345, 346, 262 A.2d 925 (1970). Even if the presence of the assistant judges was erroneous, defendant has failed to show how such error has harmed it......
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Colony Park Associates v. Gall
...They contend that the court improperly weighed the several factors bearing on specific performance set forth in Villeneuve v. Bovat, 128 Vt. 345, 348, 262 A.2d 925, 927 (1970), and Johnson v. Johnson, 125 Vt. 470, 473, 218 A.2d 43, 45 (1966). They further contend that the court "reversed" t......