*1 rеason, peti- them to answer to it. For this or which would prompt not meet of the rule. requirements tion does foot 0.4 addition relative to the injunction order finding is error and cannot stand. stairs, post landing; Decree thе removal affirmed
reversed as to the removal the 0.4 addition to the facing of foot building. defendants' Randall, West-Nesbitt, Inc. v. Glendon E. Sr.
Shirley
Randall
D.
[ ] October JJ, C.J., Holden, Shangraw, Barney, Keyser,
Present: Smith Opinion Filed December
John Burgess A. Leinwohl for
M. Martin defendants. Shangraw, The on J. is action to a note. This a civil recover This motion was heard at filed a motion to dismiss. The Term, County the Washington parties 1965 of Court. September motion, in denial of notified of the court’s action its were never forward and 1966 the cause during September brought and on motion to dismiss. Findings held the merits and hearing fact dismiss denied and were made. The motion to $6,388.88. in The defendants entered favor of to recover plaintiff have appealеd. office corporation a New York its plaintiff principal having Oneonta, and in the sale
and in N.Y. place engaged business fertilizer and grain, supplies. distribution agricultural are own jointly operate The dеfendants husband wife and Plainfield, 1, in Vermont. 1963 at Plain- a farm On November dairy suit in this action. they upon field executed the note was brought in note reads: part
“Oneonta, N.Y. November date, I, we, sev- jointly On after or either us demаnd West-Nesbitt, Inc., Oneonta, erally to the order of promise pay Y., Dollars at the Fifty-three Forty-six Hundred N. 34/100 Co., Bank National & Trust of Oneonta.” Citizens This note and to cover account given open obligation in business owing by dеfendants Vermont under plaintiff doing of Pure Grain style Company. name in was not do business Vermont under Plaintiff registered of 11 section in part V.S.A. section 691. This reads: provisions a provided, as otherwise “(a) Except shall foreign corporation in it do this state until has a certificate business received from the of foreign corporations.” commissioner authority A in section, related part provides: V.S.A. section “A maintain an in this shall not action foreign corporation if, state time of mak- contract made it in this at the upon state in contract, this state law- business without ing doing authority.” ful in authority” supra, “lawful section required referred
of a forеign corporation to do in that furnished business this state is aby “certificate of from the commissioner authority” foreign cor- porations to supra. under section foreign corporation The plaintiff is York corporation a New its home office having principal place of business New York. At time of thereto, the execution question, and for a long period prior had conducted a retail feed business Vermont under name Pure Feed Grain It is style Company. conceded by no time did certificate of under authority *3 691, supra, section to do business in Vermont. Plainfield, are farmers in Leo living Vermont. sole representative
Pаrtch was in Vermont had plaintiff’s charge of sales in and collections. He also was aof charge plaintiff’s store. On November 1963 Mr. at called the residence the de- in fendants Plainfield and their procured signаtures to the note upon in which suit of an payment is overdue bill brought feed de- owing by fendants to the Pure Feed Grain Company. its Following execution and Mr. Partch the note delivery to was himby mailed to plaintiff the at Oneonta, New York.
It is
common
that
principle
the place of contract is where
the last act
to the
essential
was
completion
done. Siwooganock Guar
Cushman,
Bank
anty Savings
v.
245-246-247,
109 Vt.
195 A.
260; Bishop
& Co. Thompson,
v.
99 Vt.
While fails made testimony, objections from the above is apparent thereto, made to the attorney sufficiently had known that defendants’ inad to this line of objections inquiry improper his trial court not with stating sоmebody “Conversation who missible the court to so rule. Having desired acceptable,” present the action desired it to which defendants made known make, specific question under object unnecessаry this failure to section part of V.S.A. reads: provisions *4 to the same shall unneces- legal be
“Subsequent point of or exclusion evidence of like nature and the admission sary deemed be to the same as subject be to thereafter shall stated.” originally Brown, 469, 470, 471, Barre 121 Vt. 160 City see v. this point,
On of Hall, 479, 885; 483, Vt. v. A.2d Canfield not rule is that courts will receive general him other as evidence of the person to what some a witness as of Smith, of v. 124 Vt. Ryalls existence the fact asserted. сourse, this are, of to this basic rule but
A.2d 494. There exceptions 497, Evidence, section not of in 29 one As stated them. Am.Jur.2d 555, “The case of testified to clearest is where witness p. hearsay the of another for the the fаcts assert- declarations purpose proving the Such by ed declarant.” is the situation here. Partch telephone conversation between Mr. foregoing Mr. the accepted Nesbitt effect that nоte had the been
Oneonta, was inadmissible as self It should serving hearsay. evidence, been excluded. Without this inadmissible evidence was received, found, or from facts which a determination could be made of thе critical issue in the this case. This leaves crucial finding legitimate without evi dentiary This error of in the brief support. complained sustained. Moreover, of the trial the progress repeat- during edly attempted on cross-examination of Mr. Partch to introduce evi- dence apparently designed facts the extent of his develop disclosing authority as line of agent repeatedly inquiry excluded the trial court. Had by thе defendants been permitted their Mr. objective authority accept Partch to the note pursue Vermont, on behalf the contract in his conclude or lack of such been authority, might well have revealed and the ultimate issue resolved.
Our Court holds that
the control
cross-examination is
within
discretionary power
control of the
court. Smith v.
Lentini, Extr.,
526,
However,
535,
125 Vt.
The cross-examination of this directed to a material and critical issue in this casе. should not have been restricted extent revealed by transcript.
The defendants’ motion to challenges dismiss author- plaintiff’s to maintain this action reason ity of its failure to have obtained a to do in Vermont authority certificate business by sec- required supra, tion failure precluded maintaining this action reason of the provisions of section supra. *5 of were fact until findings the motion made on
No final was ruling favor of plaintiff. the main case entered on filеd judgment of final denied as a part was the motion to dismiss At this time made findings based on presumably denial was order. This judgment merits of the on hearing at the conclusion by the trial case, by us. and so considered opinion, in this forth the factors set In consideration this case that all it is view phases our justice, a failure of to prevent issues the controlling in order anew heard and tried should be For by appropriate findings. and decided bе may properly presented to dismiss on defendants’ motion comment further these reasons required. cause reversed and remanded. Judgment Smith, (dissenting). J. the note here was whether for determination question vital Oneоnta, was accepted this action was brought
upon by plaintiff. question of the was or in Vermont agent fact, for the lower court. the determination was question of the note relative to the acceptance presented com- Partch, the plaintiff Mr. Leo sales representative was given by com- he mailed the note Mr. Partch’s testimony was pany. by New York after was defendants. signed pany telephone that he was informed aby message then testified an objection that the note had been accepted. While company as to individual testifying made the defendant conversation, objection he made whom had telephone with that a conversation did take telephone place. to the any objection made the defendants Nor was following Yes. of a “A. payment and answers: The note was feеd questions Company, subsidiary bill from Pure Feed Grain which was of West- Nesbitt, Q. Inc. And it had company you been Yes.” that? A. on excluded might
While this evidence been proper made, in the absence considered properly in the for the and resulted below the lower court here evi- raise the of the admission of the In attempting dence, the defendants in their here refer just brief us quoted, merely and make the transcript unsupported stаtement pages that “the court’s therefore arbitrary ruling prejudicial contention, A reversible.” brief that merely states without aid *6 authorities, argument review. supporting presents Knight 120 Willey, below adduced judgment supported by
in the cause on the final where made. No acceptance below, made to the admission of such evidence nor is any to its I exception admittance briefed here. would affirm properly lower court.
Clarence C. Fish v. Nationwide Mutual Insurance et al. Co.
[ ] A.2d
October Holden, C.J., Shangraw, Barney, Keyser,
Present: Smith JJ.
Opinion Filed December