*1 appear, purpose denying in motion to his but sole this right New York to have five his thousand dollar merits, then, instead, taxing case heard on its and costs being right just throughout.” and quoted appellant’s
We have all brief contains respect with errors that he claims were committed. repeat many
We
what we have
said
times
re
general
gard
briefing.
A
or abstract statement of
law
specific application
fact without
to some
will
Calkins,
539, 541,
considered. State v.
117 Vt
We also
what we
in regard
have said before
abusing
withholding
Any
discretionary
discretion.
subject
ruling
clearly
is not
here
review
unless it
and affirma
tively appears that such discretion has been abused or with
Langlois,
81, 85,
held. Horicon v.
115 Vt
party alleging
cases cited. The
an abuse of discretion has
showing
Preston,
burden
it. Daniels v.
Bove’s Executor,
A
Ricci v.
Alex Laferriere and Irma Saliba [117 380] January Term, 1955. Sherburne, J., Cleary, Chase,
Present: JJ., C. Adams and Smith, Supr. J.
Opinion February 1, Filed 1955. Opinion Reargument on Motion for filed October *2 brief) for the de- (Monti Jose M. Monte & Calhoun on the fendant. plaintiff. Davis for
Finn & Adams, brought J. an of contract This is action alleged recover a on of real to be commission the sale estate plaintiff. due from the The writ defendants to specifications. common counts The defendants answered with by pleading general issue and a further answer agency prior existed it terminated the defendants was question. by jury to the sale Trial with verdict judgment exceptions plaintiff. The case is here on of the defendants. theory plaintiff’s and his evidence case was *3 broker,
tended the de- to show that he was a real estate that by in selling fendants a house them the were desirous owned city Barre, they previously had it another that listed with sale, approached real for estate that later the defendants plaintiff regard in selling to it and a result thereof an agreement whereby plaintiff oral was made undertook agreed pay sale and the him commis- defendants a 5% plaintiff sion. That one the defen- showed Hutchinson dants’ house and the Hutchinson showed defendants house, discussed, asking price that of both houses was that asking price at different times the of the defendants’ $24,000.00 $22,500.00 house was and then the Hutchin- $18,000.00 $16,000.00, son house it was and then that when parties exchanged paid later the de- houses Hutchinson $6,500.00 cash, respective fendants in that the deeds of the stamps showing houses had revenue attached the value $18,500.00 defendants’ house as and the Hutchinson house as $12,000.00. theory
The defendants’ was and their evidence tended they in approached plaintiff show that never selling house, plaintiff approached that them exchange houses, of the two that with Hutchinson about by made Hutchinson that was declined an offer was and that the defendants then told the defendants to sell their house and that did desire would any exchanged. if pay him commission the houses were charge is to the of the court. The first briefed charge jury, true In the course of its the court told the "It is negotiations done some work were we you have a have a rule which is sometimes invoked which right person to consider this case. That is where a serves another, any another or works even the absence promise compensation, implies person the law that performs who furnishes the work the services is entitled to recover or is entitled to recover the value of the reasonable he rendered.” The service which defendants took the follow- ing exceptions, except part "The defendants you though court’s where said even there was no con- performed if tract services were is entitled to recover going for those. But I think that is further than the contract. If the contract was terminated then he was not entitled to anything.” recover jury by way
The court then told the of supplemental charge, your you "I think I called attention to the fact might possibly agency find at one time there well was an you and the between the defendants. If should find, later the sale was consummated termi- before that was nated, particularly having mind view taken the de- fendants, $4,000.00 only an offer of made and that he [they] he [they] through turned down and said was [were] deal, you things true, your with the find those then verdict be for the on will defendants.” case the evidence theory upon upon which it was did not call for a tried *4 charge upon implied pay to contract the reasonable value performed. services defendants did not renew their foregoing exception supplemental charge after the and while specifically language excepted the court did not the withdraw to, might it have understood that the defendants were satisfied. charge although
A to it is be taken as a whole and that, may expressions alone, contain some taken be would
29 spirit and doctrine true error, it the yet if as a whole breathes jury has say that no fair to there is of the law and Danville v. West it, ought Cole by to stand. misled been Moxley’s 32, In re Assoc., A151 Coop. Creamery cited; Gould A and cases Will, Gould, A2d 24. that the court charge shows
An of the entire examination jury already to, told the language excepted had before the de- show that order to recover must plaintiff that or to sell engaged as a real estate broker plaintiff fendants procured a customer exchange and that he property to and price agreed ready, willing purchase at a able and repeated as This later accepted the defendants. was they the deal they if that Again were told believed true test. that if They told plaintiff off failed. were was called entitled to recover they that was were satisfied of either the amount of the commission it would be 5% $18,500.00 $22,500.00 of these or The substance value. repeated essentials was several times.
Furthermore, re- to the matter is doubt against transpired after solved the defendants what They then re- jury had the case and received deliberated. they if the full amount turned and asked the court had to take they the amount themselves. the commission could set then in the should conclude were told event his case and is entitled had established recover, compromise appears opportunity there be commission is then entitled to recover 5% $18,500.00 $22,500.00 per cent plus of either interest at six No otherwise their verdict would for the defendants. court exception was taken to this the defendants. The original excep- part thus took that to which the applied tion out of the case. The verdict was 5% $18,500.00 jury plus plain interest. It is was complained error rendered harmless. misled and the This is sustained. judgment, defendants made
After verdict and before two motions to set aside the verdict. The first is weight of the evidence against reason that the verdict *5 30 the verdict The second is grounds. three
and contains grounds three and contains the evidence supported is motion. the first the three contained other than weight of the evidence” "against expression The "against the evidence” thing expression as the the same means Pilger, 113 Vt Russell v. "contrary to the evidence”. 550, 537, A2d 403. 37 ground that a verdict on the aside
A motion set the discretion is against the evidence addressed it is supporting ground is court and on the the trial that.there latter A motion on the question of law. raises a evidence for a as a motion in nature and substance is the same denying ruling of the trial court and' the directed verdict in the most favorable if the evidence taken must sustained reasonably fairly and tends prevailing party light for the 331, 324, Gould, Vt supra, v. 110 the verdict. Gould support Ins. 24, cited; State Mutual Fire Belock v. 6 A2d and cases Leonard, cited; 435, 439, 19, Long v. Co., 175 A and cases Vt 106 465, 470, 8 258, 263, Fogg, 110 Vt A2d Collins v. 32 495, Salvucci, cited; Vt 117 A2d and cases Wilford 498, A2d any grounds defendants do not brief weight of the against the motion to set aside the verdict as grounds of motion to aside the first two set evidence and evidence, they are supported so the verdict as Manning, 118 waived. Fletcher v. Wooster, cited; Strout v. cases
and cases cited. the one ground of the latter motion which is
The third is, plaintiff could not by the defendant "That briefed agent act the defendants Hutchinson without as both he principals and that cer- disclosing all the facts to two tainly and he could recover no commission.” did not do this They say the evidence showed that claimed seeking and in and collected a commission Hutchinson claiming to act of these defendants recover a commission They charge in in the transaction. parties for both is destitute of consent the evidence brief the defendants and Hutchinson to show that consented to of a payment double commission to a dual agency plain- and that the enforcement of the *6 They claim should denied as a matter of law. tiff’s call charge in plaintiff attention that the court its said that the acting capacity.” "in of a was somewhat dual rely Stewart, upon of case Leno v. 89 Vt page 95 A In that this omitting case Court at citations, requires good said: "The the utmost faith law and loyalty agents, from for the furtherance and advancement of the principals. plaintiff’s interests of their The action did not when, requirement meet this of parties, without consent both accepted he employment consequence both and in thereof bring trade, together was interested to them in to the exclu sion of all others. In such of circumstances interests each principal danger prejudice in were of from the adverse interest agent. of the The plain twofold interests and relations of the tiff were inconsistent of with interests both sides he and right had no engaged to be both knowledge without their and consent. public policy We therefore hold that forbids of plaintiff’s enforcement he claim which seeks to recover in this suit.” excepting
Where the party position takes the that there is no evidence to establish a material fact upon that question transcript, duty tenders the it becomes prevailing party of proving who has burden the fact to point Press, out such evidence. Rice’s Admr. v. Hutchinson, Leonard v.
A2d 698. plaintiff
Here the pointed any has not out evidence question regard as to the plaintiff’s raised conduct agency parties. Instead, for‘both he answers the de- by claiming question fendants plaintiff acting parties both was not raised the defendants an issue as in the case before the verdict was rendered and was theory upon not the quotes quite which the case was tried. He extensively from the capacity the court where dual stated, was mentioned. The court "Now the here was acting somewhat in a He capacity. apparently repre- dual thought he must have he was be- Mr. Hutchinson
sented He the view he commission. takes pay him a he made cause representing defendants. Now both representing was defendants, acting in Hutchinson) (meaning good faith toward to exercise the utmost he had capacity, dual the evidence spoke court then about The parties.” each of the accepted. were and the claim to offers already called to the the two essentials it reverted to Then namely, being on the the burden jury, about attention engaged defendants him to sell plaintiff to show that procuring that he was the cause exchange property and exchange prop- two which resulted in the transaction jury to these erties, had satisfied the as two if the recover, essentials, otherwise not. entitled was times, capacity several dual repeated this but substance of was again parties mentioned acting both maimer. *7 other charge in exception no to the this took The defendants no motion for a directed verdict on They made connection. ground. or in on other upon relied fact the now binding ground. for a instruction on this request made plaintiff recover as a matter of cannot The claim that the acting agent as Hutchin- the was both law because disclosing all the facts defendants without to son and the he supporting there is no evidence that did them and that for the first time after the verdict. put this is forward complaint sufficiency not a as to the need consider We support a verdict where the trial court’s of the evidence to exception issue which authorized without submitted Graves, v. 116 77 A2d the Loomis Vt 838. verdict. case, however, appear from In does the the instant trial court did the issue of charge as a whole that submit good in and his faith in acting capacity a dual theory doing jury. apparent is this so to the It jury. submitted to the in the case as upon theory conducted his case party A who has jury per a has has made case the evidence theory, objection, upon that without mitted it to be submitted right, himself, cannot, by as a mo- at least matter avail a verdict, a tion claim to set aside adverse that such evidentiary support and should as a verdict is without matter Cushman, in Skoll v. his favor. law have been question insufficiency If defendants desired good in plaintiff’s evidence faith while parties they claiming to for both act should have action, by motion for by proper done a a directed so binding both, request for bring verdict or a a instruction theory issue into case and the lack of this such evi attention of the trial court before dence to the verdict and verdict, right, so after as a cannot do matter mo a procedure tion to set the adverse verdict. If such aside had defendants, in been followed court its discretion request upon proper showing a would have been a position supply to allow the lack of such evi dence, any might have. issue then would have been properly disposed been case and could have trial court.
This is extension of the principle but reasonable es- Cushman, supra; Graves, tablished in v. Skoll Loomis v. supra; Gero, Jur, and Senna v. 3 Am Appeal Error, & §388. Cushman, supra, upon
As Skoll are not we called here to whether trial might decide court in its discretion granted present have considered and motion. disposition
What we make of shall the case here? The defendants claim that verdict and *8 judgment question sufficiency the of the raises of the evi- grant dence so that we can the motion to set aside ver- the judgment upon dict and enter for the rely defendants. cases, Bliss, 535, Bates, two 55 Hamblett v. Vt and Farrant v. 37, authority 60 Vt 11 A 693. is Neither for the claim made exception for the them. In first the the was to action of the directing trial plaintiff. court a for verdict In judgment second the was to founded on special a verdict.
34 no for directed verdict and motion a
Here there was notwithstanding We verdict. judgment a motion for under judgment defendants disposed to enter are authority having to do some so without circumstances those us we can over- On the record before pointed out to us. been plaintiff. judgment for the affirm the exceptions and rule pre power our discretion and we have That beyond ques justice, remand the cause is of vent a failure practice our to do so circum has been when tion and it 446, 455, A Pilette, Vt 189 v. 108 it. Shea warrant stances cited; 933, Essex Co. v. Fine 154, and Chair 109 ALR cases 145, 578, cited; Co., and cases 116 Vt Furniture 442, 451, Press, 94 397. v. 117 A2d Rice’s Admr. Vt case cited. quite is like the Rice last The instant case part on the question was lack evidence There case, case, question present unlike the plaintiff, but by a motion ver- in the instance for a directed raised first dict. satisfy de appears in the record to us
Enough may defense reason the issue have a meritorious fendants timely properly their motion when raised raised opportunity. have that presented and we think should Flanders, 925; A Hammonds, 191 Essex Inc. 109 Vt v. Co., supra. Fine likewise Co. v. Furniture Chair to meet that opportunity issue evidence should have Furthermore, may matter any he in addition to the have. here ele parties, justice there involved between Stewart, supra, page 89 Vt policy. v. at public ment Leno 289, 95 A 539. for on a limited examples
For of a remand a new trial 704; only, Bourgeois, see Mott v. issue Pilette, A supra, page at Johnson Shea Co., 269, 282-288, A187 Casualty v. Hardware Mutual only a new Judgment remanded trial reversed cause while upon good the issue conduct of faith acting Hutchinson and both defendants. *9 On Motion Rcargnment Jeffords, Cleary, Hulbard, J., Adams, Present: C. JJ. Chase Adams, foregoing opinion promulgated, After J. for reargument. filed a The defendants motion motion is that we overlooked and did not consider certain they portions of their brief said that did when we not brief grounds against of their motion to set aside the verdict as weight grounds of the evidence and the first two of their motion to set supported aside verdict as not the evi- dence.
They our to in pages direct attention certain part that their they charge brief to exception wherein briefed They pages reply court and to certain in their brief. now say that misplaced certain statements in their main brief were part and should in have been that of their brief pertains that the grounds collectively to of their motions to set aside point verdict. also certain reply out statements in their brief. question statements when considered with part they appear pertain apply their brief which arguments
with other to implied to an contract. didWe not overlook them. We gave them due consideration with the remainder of briefs point on the placed they where the defendants them. If apply wished them question, also to another it was duty to so do attempt state. We not search the briefs rearrange purpose ascertaining points them exceptions parts apply. to which the various We assume compiled that the one made who has brief stated what applicable considers for our on question consideration each upon which he relies.
Furthermore,
the statements
the defendants now
applicable
wish us to
grounds
consider as
of their motions
briefed,
we
not,
said
do
were
when considered
themselves, adequately
grounds.
presented,
brief those
As so
therefore,
Calkins,
were not
for consideration. State v.
Failure *10 rehearing. Bragg, for Turner afford a cited. and cases entry go down. denied. Let reargument Motion full Derringer, Margaret Inc. v. A. N. Wall A2d 390] [117 February Term, 1955. JJ., Cleary, Chase, Sherburne, J., Adams C. Present: Hnlburd, Supr. J. Opinion Filed October Henry plaintiff. N. Press for the defendant. John G. Kissane Chase, in which an action of tort J. This is she fell the defen- damages injuries received when seeks