Drazen Lumber Co. v. Casner

• Decision Date: 30 April 1968
• Citation: 242 A.2d 754,156 Conn. 401
• Court: Connecticut Supreme Court
• Parties: The DRAZEN LUMBER COMPANY v. Clifford W. CASNER et al.

Page 754

242 A.2d 754

156 Conn. 401

The DRAZEN LUMBER COMPANY v. Clifford W. CASNER et al.

Supreme Court of Connecticut.

April 30, 1968.

John J. Resnik, New Haven, with whom, on the brief, was Nathan A. Resnik, New Haven, for appellant (plaintiff).

John W. Colleran, New Haven, for appellees (defendants).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Justice.

This action was brought in April of 1957 by a common counts writ alleging that the defendants were indebted to the plaintiff in the sum of $5760.30. No further pleading was filed until Noverber, 1964, when the defendants moved that the plaintiff be nonsuited for failure to file a substituted complaint or bill of particulars. Thereupon, the plaintiff filed a substituted complaint, alleging that on or before December 1, 1957, the defendants were indebted in the sum of $2302.39 for building materials which they had purchased from the plaintiff. The defendants answered by way of a general denial. Meanwhile, during the seven years in which the action lay dormant, the plaintiff's original counsel died and the plaintiff's delivery and charge slips and its ledger cards were lost and not available at the time of trial. The case was tried to the court, which found the issues for the defendants, nothing that '(u)pon the basis of all the credible evidence, the court finds that the plaintiff failed to sustain its burden of proof.'

The plaintiff has assigned as error the refusal of the court to find facts set out in twenty-one paragraphs of its draft finding. Contrary to the plaintiff's claim, most of these claimed facts were not admitted or undisputed. 'A fact is not admitted or undisputed merely because it has not been contradicted. The question of credibility is for the trier.' Taylor v. Taylor, 154 Conn. 340, 341, 225 A.2d 196, 197; Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430. Furthermore, '(t)o secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. Maltbie, Conn.App.Proc., § 158. * * * A further requirement for such an addition to the finding is that the particular portion of the appendix pleadings or exhibit, as the case may be, relied upon as requiring the addition, be pointed out in the appellant's brief. Maltbie, op. cit., § 328.' Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634, 636; Brockett v. Jensen, 154 Conn. 328, 330, 225 A.2d 190. The plaintiff failed to establish any failure on the part of the trial court to include in its finding any paragraphs which were admitted or undisputed. An examination of the appendices also indicates that the challenged material facts found by the court were fully supported by the evidence. We find no error in the court's finding of fact.

The evidence printed in the appendices to the briefs clearly indicates the problem of proof with which the plaintiff was confronted in attempting to prove a stale claim in the absence of its delivery and charge slips and its ledger cards. It was forced to rely upon the recollection of its president, and it does not appear that any evidence whatsoever was offered as to what specific materials were in fact sold to the defendants or when. Its problem was further complicated by the circumstance that at about the same time the plaintiff also sold the defendants building materials in connection with a building operation other than, and in addition to, the project involved in this action. Any amounts due on that job were subsequently settled by a voluntary agreement and release. It also appears that, although the plaintiff's president testified that $2302.39 was the total due from the defendants when suit was instituted in April, 1957, and that no other payments were made after February, 1957, nevertheless he thereafter admitted that a payment of $3061.91 was made on June 26, 1957. We find no error in the conclusion of the trial court that the plaintiff failed to sustain its burden of proof.

The plaintiff has assigned error in one ruling on evidence and in the refusal of the trial court to present in its finding the full circumstances of that ruling. The finding does not fully set out the circumstances of the ruling and, particularly, does not include the claim made...