Boughton v. Boughton

• Decision Date: 14 June 1904
• Citation: 77 Conn. 7,58 A. 226
• Court: Connecticut Supreme Court
• Parties: BOUGHTON v. BOUGHTON.

58 A. 226

77 Conn. 7

BOUGHTON

v. BOUGHTON.

Supreme Court of Errors of Connecticut.

June 14, 1904.

Appeal from Superior Court, New Haven County; William T. Elmer, Judge.

Action by George Boughton, as trustee, against Henry T. Boughton. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff and defendant are brothers. Their father died in 1891 possessed of certain real estate in Waterbury, upon which was a two-tenement dwelling house. At the time of the father's death the defendant was and for some time had been, occupying said premises under the understanding that he was to pay a reasonable rent therefor. He has since continued to reside in the lower tenement thereof during all the period covered by the present controversy. He has personally paid no rent, and none has been paid for the lower tenement. The upper tenement, since shortly after the father's death, has been occupied by other parties, and the rent therefor paid by the occupants to the plaintiff. For the three years subsequent to April 1, 1895, this occupant of the upper tenement was the defendant's son-in-law, one Birkenmeyer. The plaintiff was one of the executors of his father's will, and by said instrument was made trustee to manage said land and house, collect the rents thereof, and pay over the same to the widow of the deceased during her life. He qualified November 2, 1891. Mrs. Boughton died November 3, 1896. April 25, 1900, the present action was brought to recover the reasonable worth of the use and occupation of the entire premises from said November 2, 1891, to February 3, 1900, the amounts paid by said son-in-law being credited. The defendant, among other defenses, pleaded the statute of limitations, to which the plaintiff replied alleging acknowledgments and new promises removing the bar of the statute. The court ruled that the plaintiff was not entitled to recover for any period of time subsequent to Mrs. Boughton's death. From this ruling the plaintiff has taken no appeal. It found that shortly after the plaintiff's qualification the defendant promised him to pay him what the use and occupation of the premises were reasonably worth, and that the defendant's use thereof from November 2, 1891, to November 3, 1896. was reasonably worth $1,025. It also found that "the defendant acknowledged that be owed the plaintiff for said use and occupation within a period of six years next before the commencement of this action, * * * and promised the plaintiff, on two or three occasions within said period, that he would pay the plaintiff for his use and occupation of said premises." It marked as "Not proven" the paragraph of the defendant's draft finding as follows: "The defendant made no other payment or acknowledgment of his own indebtedness or obligation to pay the rent of the premises, except that of these payments made by said son-in-law." Judgment was rendered for the plaintiff to recover said sum of $1,025.

John O'Neill, for appellant.

Terrence F. Carmody and Charles W. Gillette, for appellee.

PRENTICE, J. (after stating the facts). Judgment was rendered for the plaintiff to recover rent for a considerable period of time prior to six years before the commencement of the action. This, under the pleadings, involved the finding of an acknowledgment or new promise on the defendant's part within the six years. Such finding the court made. The defendant, in his reasons of appeal, seeks to attack this finding (1) as involving a conclusion of mixed law and fact of such a character as to show either a misconception of the law or a misapplication of it to the facts found, and (2) as involving conclusions of fact without evidence. In so far as the latter claim is concerned, the plaintiff contends that the defendant has, in the manner of his appeal and presentation of the evidence and rulings, so failed to comply with the requirements of statute that he has no standing to have corrections of the finding made by this court. The defendant clearly has sought to pursue the course of procedure permitted by section 797 of the General Statutes of 1902. That be has not in all respects pursued it with strict correctness is doubtless true, as the plaintiff claims. He has, in his reasons of appeal, asked for no corrections of the finding, as the statute contemplates and as good procedure dictates that he should. Instead, he has predicated error upon the finding of the...