Wednesday, December 25, 2013

Cushman v. Kirby case brief

Cushman v. Kirby case brief summary
536 A.2d 550 (Vt. 1987)

Defendant sellers appealed from the Addison Superior Court (Vermont), which rendered a judgment on a jury verdict in favor of plaintiff buyers in a lawsuit for misrepresentation. The sellers claimed that the trial court erred in not granting their motions for directed verdicts, in refusing to allow the jury to consider the separate acts or omissions of each defendant, and in the charge on the issue of damages.

The buyers entered into negotiations with the sellers for the purchase of a single family home, and the buyers agreed to purchase the property. Two months later, the buyers brought an action for misrepresentation claiming that the sellers, during the course of negotiations, represented that there was good quality well water available on the land suitable for all household uses, when in fact the well water was not of good quality. A trial by jury resulted in a verdict in favor of the buyers, and the sellers appealed.


  • Upon review, the court affirmed and held that a directed verdict was not proper because the evidence made out an actionable case of fraud sufficient to carry the case to the jury. 
  • The court found that there was no prejudice from the trial court's submission of the case to the jury as an action against the defendants jointly, based on the fact that the sellers were in close proximity of each other during the critical interchanges of information between the parties. 
  • The court concluded that the trial court's instruction to the jury on damages was not erroneous, because the trial court properly expressed the measure of damages suffered by a defrauded party.

The court affirmed the judgment of the trial court.

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