Wilson Bros. Garage v. Larrow
| Decision Date | 10 October 1916 |
| Parties | WILSON BROS. GARAGE v. LARROW. |
| Court | Vermont Supreme Court |
Exceptions from Windham County Court; Frank L. Fish, Judge.
Assumpsit by the Wilson Bros: Garage against Frank A. Larrow, with trustee process. Verdict and judgment for plaintiff, and defendant excepts. Exceptions overruled, and judgment affirmed.
Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.
Chase & Chase, of Brattleboro, for plaintiff. A. F. Schwenk and Kittredge Haskins, both of Brattleboro, for defendant.
This is an action under the common counts in assumpsit with a special count joined brought to the municipal court of Brattleboro. The writ is dated June 14, 1915. Plaintiffs seek to recover under the common counts for services rendered and materials furnished, and under the special count for damages to certain personal property. There was a trial in the municipal court on the general issue with judgment for plaintiffs, from which defendant appealed. In the county court plaintiffs filed a specification which included the damages to the personal property averred in the special count. Defendant then pleaded the general issue (nonassumpsit), payment and set-off, and the case was tried by jury.
On trial defendant objected to all evidence offered in support of the special count on the ground that it was irrelevant and immaterial, and, further, for that the special count was a declaration in tort, and could not lawfully be joined with the common counts in assumpsit. To the reception of this evidence defendant excepted.
The special count to which this objection was directed is entitled "a further plea of assumpsit," and alleges in substance that plaintiffs had become, and on the day specified were, tenants to defendant of certain premises described therein; that in consideration of the rent thereof defendant undertook and faithfully promised plaintiffs that he would keep the premises in tenantable repair and condition for use by them as an automobile garage; that defendant, not regarding his promise and undertaking, did not keep the premises in tenantable repair and condition according to his promise, but wrongfully and unjustly suffered the same to be and continue, and they were during the time in question, in untenantable repair and condition in certain specified particulars; that solely by reason of the untenantable condition of the premises a portion of the building fell and destroyed the property sued for.
The evidence received under exception tended to support the allegations of the special count, and was not objectionable on the ground of relevancy or materiality. Defendant's argument is that the action on which the trial proceeded was assumpsit on the common counts with pleas of nonassumpsit, payment, and set-off; that the evidence in question was irrelevant and immaterial to any issue raised by the pleadings, and so improperly received. But the declaration contained two counts, both claimed to be in assumpsit, and defendant's pleas were to the whole declaration; so his plea to the second as well as the first count was nonassumpsit with issue joined thereon.
Defendant's main contention is that the special count was in tort, and so not properly joined with the common counts in assumpsit. But he cannot raise the question of misjoinder of counts by an objection to the evidence applicable to one of the counts. He could as well object to any evidence being received under either count for the same reason. Assuming without deciding that the counts were not properly joined, when defendant elected to permit issues of fact to be joined on both, he cannot sustain an objection to evidence pertinent to those issues. If he has any remedy on this ground of objection after the case is at issue on the facts, it is in some other form. Barney v. Bliss et al., 2 Aikens, 60; Chase v. Holton, 11 Vt. 347; Briggs v. Mason, 31 Vt. 438; Newman v. Wait, 46 Vt. 689; State v. Louanis, 79 Vt. 463, 65 Atl. 532, 9 Ann. Cas. 194; State v. Perkins, 88 Vt. 121, 92 Atl. 1; State v. Rosenberg, 88 Vt. 223, 92 Atl. 145.
The jury returned a general verdict for the plaintiffs for $249.01. Under the court's instructions they returned a special verdict fixing the damages included in the general verdict and allowed under the special count at $141.50. Defendant moved to set aside the verdict: (1) Because against the evidence and weight of evidence; (2) because the special verdict and the amount found therein is against the evidence and the weight of...
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