Fishbein v. Guerra

309 A.2d 922, 131 Vt. 493, 1973 Vt. LEXIS 337
CourtSupreme Court of Vermont
DecidedOctober 2, 1973
DocketNo. 168-71
StatusPublished
Cited by1 cases

This text of 309 A.2d 922 (Fishbein v. Guerra) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fishbein v. Guerra, 309 A.2d 922, 131 Vt. 493, 1973 Vt. LEXIS 337 (Vt. 1973).

Opinion

Shangraw, C.J.

The defendant, Acacio Guerra, brings this appeal from a judgment entered for the plaintiffs on an action brought in the District Court of Vermont, Unit No. 4, Orleans Circuit, to recover the amount due on a loan made by the plaintiffs to the defendant. At all times material to this case, the plaintiffs, Morris Fishbein and Uria Fishbein, were engaged in a partnership which carried on an automobile financing business in Wallingford, Connecticut, under the name of Central Credit Company. At the time of the loan, November 9, 1962, the defendant also resided in Wallingford, Connecticut.

The purpose of the loan was to finance the purchase of an International van truck. In return for the loan the defendant gave the plaintiffs a chattel mortgage on the truck and a chattel mortgage note in the amount of $2,983.89. On this note the defendant made some sixteen payments, not all when due, over a two year period. At this point, the matter becomes somewhat confused because on July 21, 1964, Uria Fishbein received ten checks in the amount of $100.00 each from Acacia Dress Company, the name and style under which the defendant engaged in business.

The plaintiffs, Uria Fishbein and Morris Fishbein, also engaged in an insurance business at the same office as their automobile financing business, and acting in this capacity the [495]*495ten checks of $100.00 each were credited by Uria Fishbein to an insurance account the defendant and several members of his family had with the Fishbeins. During the course of the proceedings below it was defendant’s contention the checks were, to have been credited to the truck account and not to the insurance account. At the trial the defendant did not produce any evidence to substantiate his testimony in this regard, and based upon all the evidence presented to the contrary, the trial court found the checks to have been properly credited to the insurance account.

After filing findings of fact the trial court entered a judgment order- for the plaintiffs in the amount of $1,471.30, including interest and costs. In this appeal, taken from the judgment order, the defendant has raised claims of error relating to a ruling made by the trial court on the interest the plaintiffs could recover and to certain of its findings of fact.

The first issue raised by the defendant involves the application of the 12% interest rate allowed by Connecticut law to the amount due on the chattel mortgage note and the chattel mortgage. In this respect, it is the defendant’s contention that the plaintiffs failed to properly plead the applicable Connecticut law in their complaint, and as a consequence, the trial court was in error to allow the plaintiffs to introduce a copy of the applicable Connecticut law at the trial, and thereafter allow the plaintiffs to recover 12% interest on the amount due.

At the time the case was tried below the court was governed by 12 V.S.A. § 1699 in its determination of how to receive foreign law into evidence. Since the trial of this matter, 12 V.S.A. § 1699.has been superseded by V.R.C.P. 44.1; however, it should be noted it is consistent with the procedure in effect at the time of the trial. The plaintiffs were required to set forth in their pleadings the Connecticut statutes they wanted the trial court to apply. McCauley v. Hyde, 114 Vt. 198, 204, 42 A.2d 482 (1945). However, as contended by the defendant on this appeal, the plaintiffs failed to plead the applicable Connecticut law and thereby give the defendant notice of such. Rather, the plaintiffs merely introduced it at trial over the objection of the defendant. For this reason, it was error for the trial court to accept the copy of Connecti[496]*496cut law into evidence and rely upon it in its computation of the interest due. McCauley v. Hyde, supra, 114 Vt. at 204; Hillmer v. Grondahl, 109 Vt. 388, 391, 199 A. 255 (1938).

The defendant further contends that because the plaintiffs failed to properly plead the applicable Connecticut law on interest, the complaint fails to state a cause of action and should be dismissed. This contention ignores the fact the action was basically one for money due on a loan and that claim still remains in spite of the fact the plaintiffs did not properly plead the applicable law under which they sought to recover interest. In this respect the case at bar differs from Hillmer v. Grondahl, supra, 109 Vt. at 391-92, where the entire cause of action was conferred by the law of a sister state and the action was dismissed when the complaint did not properly set forth that law. For this reason, the plaintiffs’ complaint still sets forth a cause of action on the loan and dismissal is not the proper remedy.

In his next issue, the defendant attacks findings of fact 5, 6, and 7 for being inconsistent in that the balance due to the plaintiffs varies from one finding to another. For this reason, the defendant contends they should not be allowed to stand. These findings state as follows:

“5. As of June 11, 1964 the balance on the note as shown by Plaintiff’s Exhibit 4 was $977.87. As of August 27, 1964 there was a balance due on the account of $855.87. On April 27, 1965, Defendant was credited with a payment of $100.00, leaving a balance of $755.87, and June 28, 1965, a further payment of $100.00 was credited leaving a balance of $655.87.
6. On July 21, 1964, the balance on the truck account was $977.87, as shown on Plaintiff’s Exhibit 4.
7. Because of the delinquencies in payments, Plaintiff Uria Fishbein recomputed the balance due to reflect interest charges at the same rate at which the finance charge was originally computed, (Plaintiff’s Exhibit 5). According to this recomputation, Plaintiff’s records showed a balance of $1011.83 on June 11, 1964.”

A review of the record demonstrates findings 5 and 6 are merely summaries of portions of the entries made to the [497]*497account the defendant had with the plaintiffs as a result of the loan. Those entries were summarized by the court to show the sequence in which the defendant made his payments. Finding 7 merely summarizes how the interest was recomputed by one of the plaintiffs after the account had become delinquent and as such is self-explanatory. Although the balances vary, it is also clear the court explained the reason for the inconsistency. Thus, findings 5, 6, and 7, being supported by the evidence, must stand on review. Leno v. Meunier, 125 Vt. 30, 34, 209 A.2d 485 (1965).

The defendant also challenges finding of fact 24 for the reason it concludes that the ten checks of $100.00 each given by the defendants to the plaintiffs on July 21, 1964, were properly applied to an insurance account and not the account arising from the loan to finance the truck. In reviewing such a finding it must be remembered the persuasive effect of the evidence and the credibility of the witnesses are for the trier of fact to decide, and a finding must stand if there is credible evidence to support it. Brown v. Pilini & Wilson, 128 Vt. 324, 328, 262 A.2d 479 (1970). Finding of fact 24 provides as follows:

“24.

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Bluebook (online)
309 A.2d 922, 131 Vt. 493, 1973 Vt. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishbein-v-guerra-vt-1973.