W. A. Hambleton v. U. Aja Granite Co.

• Decision Date: 20 November 1922
• Parties: W. A. HAMBLETON v. U. AJA GRANITE COMPANY
• Court: Vermont Supreme Court

118 A. 878

96 Vt. 199

W. A. HAMBLETON v. U. AJA GRANITE COMPANY

Supreme Court of Vermont

November 20, 1922

October Term, 1922.

ACTION OF CONTRACT. Answer: Statement of facts relied upon in defense, and complaint in set-off based thereon. Trial by jury at the September Term, 1921, Washington County, Moulton J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Edward H. Deavitt and Fred L. Laird for the defendant.

Theriault & Hunt for the plaintiff.

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

OPINION

POWERS

Upon the retrial of this case, verdict and judgment were for the plaintiff, and the defendant here alleges error. Reference may now be had to Hambleton v. U. Aja Granite Co., 95 Vt. 295, 115 A. 102, for such essential facts as are not herein specified. At the close of the evidence, the defendant moved for a verdict on the ground that the plaintiff had failed to show that he was ready and willing to accept and pay for the five jobs in question, when and as required by the modified contracts.

That the evidence disclosed an arrangement under which payment and delivery were acts to be concurrently performed by the respective parties is not denied. And the law unquestionably is that in the case of concurrent and dependent promises, neither party can put the other in default without doing what amounts to giving notice to that other that he, himself, is ready and willing to perform. Jones v. Marsh, 22 Vt. 144; Faulkner v. Hebard, 26 Vt. 452; Cobb v. Hall, 33 Vt. 233; Amsden v. Atwood, 68 Vt. 322, 35 A. 311; Burlington Paper Stock Co. v. Diamond, 88 Vt. 160, 92 A. 19. But this rule does not apply when, to the party's knowledge, the other party has put it out of his power to perform, and, for that reason, the former neglects or refuses to perform or tender performance. Packer v. Button, 35 Vt. 188; White v. Lumiere North Am. Co., 79 Vt. 206, 64 A. 1121, 6 L.R.A. (N.S.) 807. In such a case, an offer to perform would be a vain and idle ceremony, which the law never requires. " Lex neminem cogit ad vana seu inutilia," says the maxim. Broom, 252; Hard v. Brown, 18 Vt. 87.

While there was evidence tending to show that the five jobs in question were finished and ready for shipment on April 1, 1919, the time agreed upon, and that notice thereof was season- ably given to the plaintiff's agent, there was also evidence to the contrary. That of the plaintiff tended to show that, by its failure to complete the jobs within the time specified, the defendant had put it out of its power to perform, for which reason the plaintiff made no offer to perform.

Here, then, was a controversy over the very facts that controlled the application of the rule contended for by the defendant. So the court below could not say, as matter of law, that it did or did not apply; for that depended upon how the jury found the controlling facts.

Moreover, a positive and unequivocal refusal to perform, made at maturity or before, if not seasonably withdrawn, excuses performance or tender thereof, by the other party. Durkee v. Vt. Cent. R. Co., 29 Vt. 127; Emack v. Hughes, 74 Vt. 382, 52 A. 1061; Davis v. Bowers Granite Co., 75 Vt. 286, 54 A. 1084; Ellis' Admr. v. Durkee, 79 Vt. 341, 65 A. 94; Temple v. Duffy, 96 Vt. 114, 117 A. 101.

So, too, a refusal to perform except upon compliance with an unwarranted condition or demand works the same result. Amsden v. Atwood, 68 Vt. 322, 35 A. 311; Hamilton v. McLaughlin, 145 Mass. 20, 12 N.E. 424; Indiana Bond Co. v. Jameson, 24 Ind.App. 8, 56 N.E. 37; Lewis v. Lee, (Ind. App.) 130 N.E. 443.

The evidence was such that the jury would have been warranted in inferring that the defendant refused to complete these jobs. The time to which this line of testimony related was somewhat obscure, but it cannot be said, on the record, that it could not relate to April 1, or a previous date. And there was also evidence tending to show that the defendant refused to ship these jobs, though completed, unless the plaintiff paid the defendant an old bill not covered by the modified contracts. This evidence surely referred to a time within the term of the contracts.

In this situation of the evidence, though there was much to controvert it, the court could not, for reasons already stated, grant the defendant's motion for a verdict.

The defendant filed a motion to set aside the verdict, and saved an exception when the same was overruled. This exception merits little consideration. So far as the verdict being unsupported by the evidence and contrary to the court's instructions is concerned, the only point made in the brief is the lack of evidence of a readiness and willingness to perform on the part of the plaintiff. For reasons already given this ground is unavailing. So far as the matter of damages is involved, it is enough to say that the question briefed is not the one specified in the motion, so neither is for consideration here, as we have, in effect, said many, many times before.

The court charged the jury that the defendant was not obliged to deliver the jobs, either by actual shipment or otherwise, without being paid for them; that the plaintiff was not required to pay for them before delivery, but that delivery and payment were acts to be concurrently performed. To this instruction the defendant excepted for that the jury should have been instructed that the defendant was not required to let the jobs "go out of his possession or control" until he had his pay for them. But we do not think the jury could have misunderstood the charge as given. The word "deliver" implies a release of possession or control. As used here, it implied a release of both, and must have been so understood.

The defendant excepted to the charge on the ground that the jury should have been instructed that the notice that the goods were ready for shipment was, under the contracts, to be given to F. W. Bancroft, the plaintiff's eastern representative, and to no one else. Thereupon, the court instructed the jury that such a notice given to Bancroft would be as effective as if given to the plaintiff, himself. To this supplemental instruction, no exception was taken. So the error, if any, was cured. Davis v. Central Vermont Ry. Co., 88 Vt. 460, 92 A. 973; Bonazzi v. Fortney, 94 Vt. 263, 110 A. 439.

The defendant also excepted to the charge "as to shipment to the railroad company." No specific defect therein was pointed out, and in the colloquy that followed the whole matter was evidently forgotten, for it was not again referred to. The exception was too general to be availing. Fitzgerald v. Metropolitan Life Ins. Co., 90 Vt. 291, 98 A. 498; In re Chisholm's Will, 93 Vt. 453, 108 A. 393; In re Healy's Will, 94 Vt. 128, 109 A. 19.

The defendant offered to show that shortly before April 1, 1919, it was agreed between the parties, acting by their respective agents, that the defendant should extend the time of payment of certain bills, then overdue, for granite jobs not covered by the writing of February 19, 1919; that the plaintiff should make payment of such old bills, together with the bills for the five jobs here in question, before said five jobs were shipped; that the parties treated the contract as thus amended as subsisting until about May 15, 1919, when the plaintiff refused to make the payments specified until the five jobs had been shipped for forty-eight hours; that on the occasion last specified, the defendant notified Bancroft that he was ready to ship the five jobs upon payment being made as above. The defendant's answer having been amended to cover the offer, the same was excluded and the defendant excepted. The foregoing was included in successive offers, but for convenience, these are treated as one.

The ground on which this ruling was made was that a contract within the Statute of Frauds cannot be modified by parol; and this is the only question discussed here. It was not suggested below, nor is it now suggested that the contracts in suit were not within the Statute, and so, not within the rule invoked by the plaintiff. But, lest others be misled, we ought to say, in passing, that these contracts were not within the Statute of Frauds. This satisfactorily appears by Forsyth v. Mann Bros., 68 Vt. 116, 34 A 481, 32 L.R.A. 788, which was decided upon full consideration and discussion. See, also, Mattison v. Wescott, 13 Vt. 258; Ellison v. Brigham, 38 Vt. 64. And it is well settled that a simple contract not within the Statute, though written, may be modified by a parol agreement. Flanders v. Fay, 40 Vt. 316; Frost v. North British Ins. Co., 77 Vt. 407, 60 A. 803; Powers v. Rutland R. Co., 88 Vt. 376, 92 A. 463....