AG ANDERSON CO. INC. v. TC Industries, Inc.

380 A.2d 90 (1977)

A. G. ANDERSON COMPANY, INC. v. T. C. INDUSTRIES, INC. and William O. Thrailkill and Calvin Carr d/b/a T & C Construction.

No. 149-76.

Supreme Court of Vermont.

November 3, 1977.

Motion for Reargument Denied November 29, 1977.

*91 McKee, Giuliani & Cleveland, Montpelier, for plaintiff.

George E. Rice, Jr., Montpelier, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

By complaint filed in the Washington Superior Court, the plaintiff sought to recover for materials delivered and work done on Timberline II, a construction project located on the Access Road, Warren, Vermont. The defendant corporation and the two named individuals denied liability, and the trial by court resulted in a judgment in favor of the defendants from which the plaintiff appeals.

On appeal the plaintiff contends that the evidence and findings do not support the trial court's conclusions and judgment. We agree. The trial court found as fact that the plaintiff submitted a written proposal addressed to T. C. Construction Company. The evidence showed that this proposal was accepted by Mr. Carr with the knowledge and consent of Mr. Thrailkill. Throughout this transaction these two were doing business as T & C Construction, also referred to in the evidence as T. C. Construction and as T. C. Construction Company. When plaintiff completed its work in accordance with the proposal, it sought payment from Mr. Carr.

There is no evidence that plaintiff knew or should have known that Thrailkill and Carr, doing business as T & C Construction, were acting in any other capacity than as principals. If they were acting in another capacity, it was for them to openly announce that fact to the plaintiff. Bachli v. Holt, 124 Vt. 159, 164, 200 A.2d 263 (1964). Instead defendants stood silently by while plaintiff completed performance, and now it is too late to claim that, as to plaintiff, they are not principally liable. Diamond National Corp. v. Szerbik, 129 Vt. 452, 454, 282 A.2d 806 (1971).

The trial court erred in failing to conclude as a matter of law that defendants Thrailkill and Carr, doing business as T & C Construction, were liable to the plaintiff in the amount of the stipulated damage. Therefore the judgment against the plaintiff is unsupported by the evidence and the trial court's findings and must be reversed. This case need not be remanded since sufficient evidence appears on the record to indicate what the judgment should be. Chaffin v. Bitinsky, 126 Vt. 218, 220, 227 A.2d 296 (1967).

The trial court's judgment dismissing the plaintiff's action against T. C. Industries, Inc. is affirmed. The dismissal of the defendants Thrailkill and Carr, doing business as T & C Construction, is vacated, and judgment is entered for the plaintiff to recover $10,893.68 from the defendants Thrailkill and Carr, doing business as T & C Construction.