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153 Vt. 501

Nutting v. Freda

Supreme Court of Vermont

Decided January 26, 1990

Supreme Court of Vermont · decided 1990-01-26

Cited by 8 later decisions — most recently August 2018

8 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1990-01-26

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Peck, J.,

¶1concurring. I have no choice other than to agree with affirmance by this Court of the result reached by the trial court. There is a long standing policy which precludes an appellate court from interfering with, or substituting its own judgment for, that of a subordinate court, provided, as the entry order here correctly states, the court’s findings are supported by the evidence and are not clearly erroneous.

¶2Nevertheless, I feel compelled to write separately because I am satisfied that the evidence would also have supported contrary findings and, therefore, a different result. I would have made such findings and reached a contrary conclusion.

¶3I am fully aware of, and agree with the principle that equitable consideration may, in a given case, preclude the Statute of Frauds from being used to promote a fraud. Essentially, it is that principle upon which the Court’s order relies in this case. However, I question strongly that it is applicable here. Reliance thereon should be carefully and rarely employed, even though its use may be a matter of discretion. Reliance on equitable exceptions to the Statute of Frauds too frequently and casually gives rise to the dangerous consequence that the statute will be converted into an exception to the equitable principle which in turn becomes the general rule. The potential for frauds will be enhanced and the statute seriously weakened. I believe that has happened here.

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