F. Chaffee's Sons v. Estate of J.W. Blanchard

• Decision Date: 02 May 1933
• Citation: 165 A. 912,105 Vt. 389
• Parties: F. CHAFFEE'S SONS v. ESTATE OF J.W. BLANCHARD
• Court: Vermont Supreme Court

165 A. 912

105 Vt. 389

F. CHAFFEE'S SONS v. ESTATE OF J.W. BLANCHARD

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Waiver of Exceptions by Failure To Brief---Discretion of Court---Determination of Weight of Evidence---Statute of Limitations---New Promise---Effect of Maker of Note Indorsing Thereon Word "Renewed," together with Date and His Signature, in Presence of Attesting Witness---Intention of Maker In Making Such Indorsement as Immaterial---Insufficiency of Exception To Raise Objection That Complaint Was Insufficient To Permit Recovery on Witnessed Notes---Discretion of Court in Refusing Amendment of Complaint after Evidence Was Closed.

1. Exceptions to findings of court not briefed are waived.

2. Claims that finding of court was against evidence and against weight of evidence are addressed to discretion of trial court, which is not reviewable, in absence of abuse thereof.

3. Weight of evidence is for triers of fact to determine.

4. New promise will revive right of action whether made before or after statute of limitations has run.

5. Where maker of notes wrote on back thereof word "renewed," together with date and his signature and caused another person to sign as witness to his signature, held that this constituted new promise to pay renewed notes, and made them "signed in the presence of an attesting witness," within meaning of G. L. 1853 providing for 14-year limitation period.

6. Whether maker of notes in writing word "renewed" on back thereof, together with date and his signature, in presence of attesting witness, intended or understood that he thereby made new notes, held immaterial In ACTION OF CONTRACT on such notes, Supreme Court being only concerned with legal effect of such act.

7. Objection that, if notes in suit were witnessed, complaint was not sufficient to allow recovery for them, held not available under exception which challenged only quantum of evidence on which finding was based.

8. In ACTION OF CONTRACT on promissory notes, where after evidence closed, and before finding of facts had been filed, defendant moved to reopen case and for leave to file amended answer alleging payment of notes in suit by execution and delivery of third note, and to introduce evidence bearing upon such issue, held that court did not abuse its discretion in denying motion, description of new note in supporting affidavit being vague, its amount not corresponding to sum then due on notes in suit, and plaintiffs having filed opposing affidavits categorically denying defendant's claims.

APPEAL to the county court from the probate court for the District of Rutland on the allowance of two promissory notes as claims against the estate of John W. Blanchard, deceased. Trial by court at the March Term, 1932, Rutland County, Davis, J presiding. Judgment for the plaintiffs. The defendant excepted. The opinion states the case.

Judgment affirmed. To be certified to the probate court.

Lindley S. Squires and Stickney, Sargent & Chase for the defendant.

Marvelle C. Webber and Jones & Jones for the plaintiff.

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

OPINION

MOULTON

The commissioners appointed by the probate court allowed two promissory notes as claims against the estate of John W Blanchard, deceased. An appeal was taken to the county court, where the case was heard, without a jury, and, after finding of facts had been made, judgment was entered for the plaintiffs. The controversy is before us on the appellant's exceptions.

According to the finding, the two notes were executed by the decedent, for value received, and made payable on demand to the order of the plaintiffs. The first is for $ 31,175.75, and bears date of March 26, 1913. There are three indorsements of interest, the last one being dated December 31, 1921. The second note is for $ 250, and is dated December 22, 1913. There are no indorsements upon it. Both notes were kept by the plaintiffs in their office safe. On March 23, 1921, the decedent came to the plaintiff's office and wrote on the back of each of the notes the following: "Renewed Mar. 23-1921 J. W. Blanchard," and, at his request, Mrs. A. M. Burr, an employee of the plaintiffs, witnessed his signature by writing, in each instance, the words, "Witness, A. M. Burr. " The notes were then handed back to the plaintiffs and kept by them. The decedent died on October 9, 1930. At the time of the judgment there was due and unpaid on the indebtedness represented by the notes the sum of $ 69,725.77 and the court found for the plaintiff to recover this amount.

Several exceptions were taken to the finding of facts, but only one is briefed. Consequently the others are waived. Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670. This exception is as follows: "The appellant excepts to the finding of the court for the plaintiff to recover the sum of $ 69,725.77 on the ground that such finding is against the evidence, the weight of the evidence and unsupported by the evidence."' The claims that the finding was against the evidence and against the weight of the evidence (which mean the same thing) were addressed to the discretion of the trial court, which is not reviewable, in the absence of an abuse thereof. Manley Bros. v. B. & M. R. R., 90 Vt. 218, 222, 97 A. 674. This is so because the weight of the evidence is for the...