Et Ux. v. Et Ux., 1004.

• Decision Date: 04 January 1944
• Docket Number: No. 1004.,1004.
• Citation: 35 A.2d 353
• Parties: COOK et ux. v. HOLDEN et ux.
• Court: Vermont Supreme Court

35 A.2d 353

COOK et ux.

v.HOLDEN et ux.

No. 1004.

Supreme Court of Vermont.

Jan. 4, 1944.

Exceptions from Chancery Court, Rutland County; Stephen S. Cushing, Chancellor.

Suit in equity by Ralph C. Cook and wife against John B. Holden and wife for specific performance of an oral contract to convey a house and lot to plaintiffs. Decree dismissing the petition, and plaintiffs bring exceptions.

Affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Lindley S. Squires and Marion L. Ward, both of Rutland, for plaintiffs.

Goddard & Kennedy, of Rutland, for defendants.

MOULTON, Chief Justice.

The plaintiffs seek a decree for the specific performance of an alleged oral contract for the conveyance of a house and lot of land. The defendants deny the existence of such contract. After a protracted hearing the chancellor filed written findings of fact, the substance of which is hereinafter recited, and dismissed the petition with costs. The cause comes before us on the plaintiffs' exceptions to certain of the findings and to the refusal to comply with certain of their requests for findings. There is no exception to the decree.

The defendants, John Holden and Rosanna Holden, are husband and wife and jointly own a farm in the town of Mt. Holly, which they bought in 1922. The plaintiffs, Ralph Cook and Florence Cook, are also husband and wife and Ralph is the brother of Rosanna Holden. Shortly after the purchase of the property the Holdens built a new dwelling house thereon, and moved a part of the old dwelling to a strip of land belonging to the farm, across the highway from its former site, intending to make it over as a small house for their hired man to live in. However, with the knowledge of the Holdens, the Cooks made extensive and permanent repairs and improvements upon it to the extent of approximately $5,000, and lived in it. In 1927 the two families purchased a spring and the Cooks, at their own expense, piped the water to the small house. Later, when the tax assessment on the farm was increased $1,000 because of the improvements made by the Cooks, Ralph Cook paid the taxes on the increase for two years. He also took out fire insurance on the house in his own name, but the insurance company, after investigating the title, which was in the Holdens, cancelled the policy. In 1939 the Holdens recovered judgment against the Cooks in an action of ejectment.

The Cooks assert that in late July or early August, 1924, the Holdens agreed to convey to them the small house and strip of land upon which it stands in payment of a debt of $400 owing to Ralph Cook for his services for trucking in connection with the construction of the new house. The Holdens say that they rented the small house to Ralph Cook, on the understanding that whatever he expended in improving the property was to be credited against the rent.

The chancellor states that he fails to find that John Holden ever agreed to convey the property to the Cooks, and finds that whatever agreement may have been entered into concerning the Cook's occupancy of the premises was made by Mrs. Holden. He finds, moreover, that the mutual accounts of John Holden and Ralph Cook, including the trucking by the latter, were balanced in March, 1924, and settled by the payment of $11.23 to Cook, and that in July, 1924, there was nothing owing him from Holden. He is unable to find that Mrs. Holden, who kept the account, gave Cook credit for his labor on the new house, but the nature and amount of this work is not found and Mrs. Holden, at that time, held unpaid checks drawn to her order by Cook, amounting to $500.

The exceptions to the refusal to comply with the plaintiff's requests for findings refer to the requests by number only, and do not point out any reason why they should have been granted. We have repeatedly held that exceptions taken in this manner are too general to reserve any question for review. Platt, Adm'x, v. Shields and Conant, 96 Vt. 257, 266, 267, 119 A. 520, and cas. cit.; Utley v. School District, 110 Vt. 522, 529, 9 A.2d 117; Campbell v. Ryan, 112 Vt. 238, 240, 22 A.2d 502.

The exceptions to the findings cannot be used as exceptions to failures to find as requested. Morgan v. Gould, 96 Vt. 275, 280, 119 A. 517; Kennedy v. Robinson, 104 Vt. 374, 379, 160 A. 170; Lariviere v. Laroque, 104 Vt. 192, 195, 157 A. 826; Susena v. Recor, 103 Vt. 447, 449, 156 A. 416.

We give no consideration to the questions which the plaintiffs attempt to raise in this manner.

The plaintiffs took an exception to the finding that Holden and Cook balanced and settled their mutual accounts in March, 1924, and that in July, 1924, nothing was owing from Holden to Cook. The ground of the exception as taken was that the evidence showed that in the adjustment Cook was acting on behalf of a partnership known as Cook Brothers in settling certain dealings in cattle. But this is not the ground briefed; it is contended here that although there was an adjustment of mutual dealings, indebtedness for drawing materials for the Holden's new house was not included therein. It is enough to say that when a ground for exception, made in the trial court, is not briefed on appeal, it is waived, Valiquette v. Smith, 108 Vt. 121, 128, 183 A. 483, and that claims of error which have not been made below are not available in this court, Bean v. Colton, 99 Vt. 45, 50, 130 A. 580; Land Finance Corp'n v. St. Johnsbury Wiring Co., 102 Vt. 256, 258, 147 A. 285, and cas. cit.; Breding v. Champlain Marine, etc., Co., 106 Vt. 288, 295, 298, 172 A. 625; Steele v. Lackey, 107 Vt. 192, 200, 177 A. 309. However, there was testimony that Cook's services for trucking were included in the settlement. The weight of the evidence was for the chancellor to determine. Crawford v. Bromley, Adm'r, 108 Vt. 51, 53, 182 A. 180; Patch v. Squires, 105 Vt. 405, 411, 165 A. 919; Farmers' Exchange v. Walter M. Lowney Co., 95 Vt. 445, 452, 115 A. 507. We may not overturn his findings simply because the evidence is conflicting. Putnam v. Woodard, 111 Vt. 39, 41, 10 A.2d 186; Spaulding v. City of Rutland, 110 Vt. 186, 195, 3 A.2d 556. The findings of a trial court are to be given the standing of a verdict expressly approved by that court and are not to be lightly set aside. Platt, Adm'x, v. Shields and Conant, 96 Vt. 257, 261, 119 A. 520.

An exception was taken to the finding that Mrs. Holden held unpaid checks signed by Ralph Cook, on the ground that it was contrary to and unsupported by the evidence. As briefed, the ground is that it is contrary to and against the weight of the evidence, which amounts to a waiver of the contention of lack of evidentiary support. The claim that there is no evidence to support a finding cannot be enlarged to cover a claim...