96 Vt. 355 | Vt. | 1923
This is an action of contract in the form of general assumpsit. A specification containing a single item, a claimed discount or commission on the sale of an automobile to a Mrs. Maynard, was filed with the writ. The defendant pleaded a general denial, and filed a declaration in set-off. Trial was by jury. At the close of the plaintiffs’ evidence they had leave to, and did, amend their specification by adding thereto two items for money which they claimed to have paid the defendant by mistake. The pleadings previously filed by the defendant appear to have been treated as covering all questions involved in the amended specification. At the close of all the evidence the defendant moved for a directed verdict on the grounds that as to the first item the evidence did not tend to show that plaintiffs’ relations to the negotiations resulting in the sale of the automobile to Mrs. Maynard were such as to entitle them to a discount or commission under their contract with the defendant, and that as to the last two items, all of the evidence tended to show that these amounts were paid voluntarily by the plaintiffs. The motion was denied and the defendant had an exception. The verdict and judgment were for the plaintiffs.
In disposing of the questions raised by the denial of defendant’s motion, the evidence must be viewed in the light most favorable to the plaintiffs. This rule is too well established to require discussion.
The plaintiffs’ evidence tended to show that on October 15, 1920, they entered into a contract, in writing with the defendant by the terms of which the defendant agreed to sell to plaintiffs Velie passenger automobiles of the 34 and 48 models at a discount of eighteen per cent, from the regular list price prevailing at the time of shipment or delivery, f. o. b. Moline, Illinois, the terms
While the defendant’s evidence tended to show that Jarvis was told during the negotiations at Barre that if the defendant accepted the $1,000.00 and a lien note on the ear for the balance, the plaintiff would not be allowed the discount and that he assented thereto, and that Mrs. Maynard’s hotel bill was charged
That the defendant could waive the strict terms of its contract with plaintiffs cannot be doubted, and we cannot say as a matter of law that plaintiffs’ evidence did not tend to show such waiver. If no reference was made to the plaintiffs’ discount or commission during the negotiations at Barre which resulted in the sale of the ear to Mrs. Maynard, and the defendant charged her hotel bill to the plaintiffs without mistake, both questions which were for the jury, a natural and proper inference would be that the defendant treated the sale as one in which the plaintiffs were entitled to the discount named in the contract. This question was properly submitted to the jury.
The rule is well established that money' paid with full knowledge of all the facts relating to the claim paid constitutes a voluntary payment and cannot be recovered back, but money paid under a mistake concerning the facts is not, ordinarily, treated as falling within this rule. Nor does the defendant claim otherwise, but it claims that as to the second item in the specification ($29.06) “there is no evidence disputing the fact that this item was voluntarily paid by the plaintiffs after discussing this charge between the parties at the time of payment,” and makes no other claim whatever concerning it. A sufficient answer to this claim is that it is not borne out by the evidence. This item was paid, or allowed, together with others, in the settlement of certain dealings between these parties conducted on the part of the plaintiffs by the plaintiff Strong, and he testified with reference to this item, on cross-examination, “I know nothing about that, and it was never mentioned. ’ ’ On the sole question relied upon, namely, whether the payment was made with full knowledge of the facts, the evidence made a case for the jury.
The third item was unquestionably paid by plaintiffs with full knowledge of all facts concerning it, but during the trial the defendant admitted that the amount was charged to plaintiffs by mistake and tendered them the amount which they had paid. In these circumstances the court properly directed a verdict for the plaintiffs upon this item.
The defendant took some exceptions to the charge. In the main, such of these exceptions as are briefed present practically the same questions raised by defendant’s motion for a verdict and are covered by what has already been said. None of them is sustained.
On cross-examination of plaintiff, Jarvis, he was asked: "You expected the Oldsmobile Company would deliver that car to your credit without one cent being paid on it by you or your firm?” The witness answered: "I expected my commission.” To this answer the defendant excepted. While this reply was not a direct answer to the question, it was relevant thereto, and nothing appears to indicate that the witness was attempting to inject anything improper into his testimony. The evident purpose of the question was to show that, in the circumstances, the witness could not reasonably expect a commission on this car on which his firm had paid no money. If counsel thought the answer was prejudicial he should have asked to have it stricken out. The exception is not sustained,
On re-direct examination by the plaintiffs, Jarvis was asked: "Did you think it made any difference to the Oldsmobile Company of Vermont whether they had the money of Strong and Jarvis in payment of this car, or the money of Mrs. Maynard who was the purchaser under you, as long as they got their pay?” And subject to defendant’s objection and exception that it was immaterial, irrelevant and incompetent, was permitted to answer, and said, "No, sir.” It is not certain that this answer was inadmissible in view of the cross-examination but be that as it may, it does not appear how it harmed the defendant. It is not enough that the excepting party allege error. He assumes the burden of showing that he has been prejudiced thereby. Smith v. Martin et al., 93 Vt. 111, 128. This the defendant has failed to do.
During the examination in chief of Mildred McGue, the defendant’s bookkeeper and a witness called by the defend
Judgment Affirmed.