Cherier Roberge v. Town of Troy

• Decision Date: 04 January 1933
• Parties: CHERIER ROBERGE v. TOWN OF TROY
• Court: Vermont Supreme Court

163 A. 770

105 Vt. 134

CHERIER ROBERGE v. TOWN OF TROY

Supreme Court of Vermont

January 4, 1933

May Term, 1932.

Inopportune Motion for Judgment Where Trial by Court---G. L 2259---Restriction of Supreme Court to Facts Found and Filed on Review of Case Triable by Jury, but Heard by Court---Sufficiency of Question and Answer Involving Value of Hay To Sustain Finding of Court as to Property to Which It Applied---Exception to Finding as Not Warranted by Evidence Insufficient To Sustain Argument in Supreme Court as to Burden of Proof---Towns---Suit for Constable's Neglect To Complete Attachment---G. L. 3945---Judgment of Attaching Creditor Against Debtor Not Essential To Maintenance of Suit Against Town for Defective Attachment by Constable---Damages---Burden of Proof as to Mitigation of Damages---Question Not Raised Below---Husband and Wife Necessary Parties to Contract for Sale of Wife's Land Not Held to Her Sole and Separate Use---Contracts---Necessity of Reading Provisions Together---Contract Construed To Be Joint Contract of Husband and Wife---Question Raised by Exception to Judgment.

1. In action triable by jury, but tried by court, motion by defendant for judgment made at close of evidence, held properly denied as inopportune.

2. Under G. L. 2259, in action triable by jury but tried by court, Supreme Court is restricted by statute to facts found and filed below.

3. Question and answer relating to value of certain hay, held reasonably susceptible to contruction that hay referred to was hay which officer attempted to attach on certain farm at time he was serving writ, and not to hay on such farm at later date, and there was no merit to exception to court's so finding.

4. Exception to finding as not warranted by evidence, held not sustained by point made on argument in Supreme Court as to burden of proof, which was not made below.

5. To maintain suit against town under G. L. 3945, for constable's neglect to complete attachment, enabling another creditor to secure priority by mortgage lien attaching creditor need not obtain judgment in such suit against debtor, since record of such judgment would be inadmissible against town.

6. In

ACTION OF TORT against town under G. L. 3945 for constable's neglect to complete attachment. Plea, general issue. Trial by court at the September Term, 1931, Orleans County, Buttles J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Walter H. Cleary for the defendant.

Pierce & Miles for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

THOMPSON

The action is tort under G. L. 3945 to recover for the alleged neglect of Guy L. Armstrong as constable of the town of Troy to complete the attachment of certain personal property on a writ in favor of the plaintiff against one Isadore Boudro. Trial was by court, and judgment was rendered on the facts found and filed for the plaintiff. The defendant excepted.

It was not error to deny the defendant's motion for judgment which was made at the close of the evidence, because it was inopportune. The case was one triable by jury, and, therefore, is controlled by G. L. 2259, which provides that when such a case is tried by court the facts found by the court upon which judgment is rendered shall be reduced to writing, be signed by a majority of the court, and be filed with the clerk; and that other or different facts at issue in a cause so tried, except such as relate to the admission or rejection of evidence, shall not be allowed in the bill of exceptions. Conn Boston Co. v. Griswold, 104 Vt. 89, 99, 157 A. 57; Raithel v. Hall, 99 Vt. 65, 69, 130 A. 749; Hooper, Trustee v. Kennedy, 100 Vt. 376, 138 A. 778; Francis v. London Guarantee & Accident Co., 100 Vt. 425, 138 A. 780; Grapes v. Rocque, 96 Vt. 286, 290, 119 A. 420. And this Court is restricted by the statute to the facts found and filed below. Handy v. Trudell, 104 Vt. 85, 87, 156 A. 902; Powell v. Merrill, 92 Vt. 124, 130, 103 A. 259; Singer Mfg. Co. v. Nash, 70 Vt. 434, 41 A. 429; Wilson v. Barrows, 96 Vt. 344, 119 A. 422; Hall v. Simpson, 63 Vt. 601, 22 A. 664.

It appears from the record that on September 29, 1930, the plaintiff instructed Armstrong, who was second constable of defendant town, to procure a writ against Boudro, who then lived on a farm in Irasburg, and, if he found no liens of record on the hay and other crops then on the farm, to serve the writ and to attach the hay, hogs, and all other property of Boudro which was free from lien as disclosed by the records in the town clerk's office in Irasburg; that Armstrong procured the writ, and on the same day, about 11 A.M., he attempted to make service thereof by attaching ten calves, seven hogs, and about one hundred tons of hay which "were on the farm of the said Boudro"; that such service was defective in that the constable "did not lodge a copy of his writ with the town clerk and took none of the property which he attempted to attach into his possession as required by statute."

It appears further that on the same day, and subsequently to the time of the attempted service, Boudro and his wife executed to the Orleans Trust Company a mortgage on eleven yearling heifers and on all hay, grain, and crops of every kind then on said farm, conditioned for the payment of a note for $ 542.44, payable on demand, and also conditioned for the payment of all other notes or demands that the Trust Company might hold against the Boudros or either of them; that this mortgage was lodged in the town clerk's office in Irasburg for record on the same day at 6 P.M.; that on September 29, 1930, there was on record in said town clerk's office an undischarged personal property mortgage of $ 38,500, executed May 4, 1929, from Isadore Boudro to the Orleans Trust Company.

The court found in finding 5:

"That at the time of said attempted service the calves, hogs and hay which the said officer attempted to attach were on the farm of the said Boudro; that the hay amounted to about 100 tons, was of good quality, and worth $ 10 per ton; that there were seven hogs of the value of $ 100, and ten calves worth $ 80, none of which property was then covered by mortgage or other lien."

The defendant excepted to this finding on the ground that the uncontradicted testimony as to the quantity and value of hay referred to the hay on the farm in Irasburg in September, 1931, and not to the hay there on September 29, 1930. There is no merit in this exception.

The case was heard on October 1, 1931. The plaintiff called four witnesses, none of whom were cross-examined by the defendant. The defendant did not introduce any evidence, and it rested its case when the plaintiff rested.

Isadore Boudro was the only witness who testified as to the quantity and value of the different kinds of property which Armstrong attempted to attach, and all of his testimony was about that property. He was asked, "On the 20th day of September last year did you have some hay on the farm?", and he replied, "Yes." He was then asked how many tons were there, and he replied, "About 100." After a few questions and answers which qualified him to testify of the value of the hay, he was asked, "And what was the value of that hay per ton that you had there in your barn last September?", and he replied, "Well, I should say right around $ 10."

The defendant contends that this last question and answer support its exception. Standing alone they might be so construed. We think, however, that the adjective "that" which precedes the noun "hay" in the question, referred to the hay which Armstrong attempted to attach, as that was the only hay about which the witness had testified. The question and answer are reasonably susceptible to that construction, and it was not error for the court to so construe them. Resource Holding Corp. v. Schoff's Estate, 105 Vt. 144, 163 A. 768.

The court found in finding No. 8 that prior to 6 P.M. on September 29, 1930, when the mortgage of that date from Boudro and his wife to the Orleans Trust Company was lodged with the town clerk of Irasburg for record, "there was no claim recorded in said town clerk's office in the town of Irasburg, where said property was located, upon the hay, hogs and calves attempted to be attached by said Armstrong."

The defendant excepted to this finding and finding No. 5 on the ground that they are not warranted by the evidence, because it appears from the undisputed evidence, as shown by Plaintiff's Exhibit 6, which is the chattel mortgage of $ 38,500, that the calves and hay on the farm at the time of the attempted service were mortgaged to the Trust Company.

The argument of the defendant is that since the mortgage of the Trust Company for $ 38,500 covered fifty tons of hay, more or less, and ten heifer calves, "and being the only property of like kind and nature on said land and premises," the plaintiff had the burden of proving that the hay and calves which Armstrong attempted to attach were other than the property covered by that mortgage; and that there is no evidence in the case to sustain that burden.

It does not appear from Plaintiff's Exhibit 6, which was executed on May 4, 1929, that the calves and hay covered by it were the identical calves and hay that Armstrong attempted to attach on September 29, 1930. The point now made by the defendant, that the burden was on the plaintiff to show that they were not, was not made below. The exception is not sustained.

The writ in the suit of the plaintiff against Boudro was entered in court on October 20, 1930, and was discontinued before the present suit was brought.

The defendant contends, in support of its exception to the judgment, that the plaintiff...