Frederick L. Houghton v. Jesse R. Grimes

• Decision Date: 07 October 1930
• Parties: FREDERICK L. HOUGHTON ET AL. v. JESSE R. GRIMES ET AL
• Court: Vermont Supreme Court

151 A. 642

103 Vt. 54

FREDERICK L. HOUGHTON ET AL. v. JESSE R. GRIMES ET AL

Supreme Court of Vermont

October 7, 1930

May Term, 1930.

Evidence---Testimony of Deceased Witness---G. L 1628---Value---Witnesses---Competency---Presumption in Supreme Court as to Competency---Sufficiency of Evidence To Show Competency---Corporations---Record of Stockholders' Meeting as Evidence of Act of Corporation---Price as Evidence of Value---Harmless Error---Presumptions as to Use of Evidence by Chancellor---Injunction---Finding Respecting Counsel and Value of Services---Sufficiency of Evidence To Support Finding as to Value of Corporate Stock---Judicial Admission---Immaterial Finding---Exception To Immaterial Finding---Damages Assessable on Dissolution of Injunction---Burden of Proof---Requisites To Allowance of Damages for Injunction against Law Action---Duty of Party Enjoined To Protect Himself against Loss---Finding of Diminution of Value of Corporate Stock Unsupported by Evidence---Effect of Execution Returned Nulla Bona---Insufficiency of Evidence To Support Finding Party Damaged To Amount of Uncollected Judgment---Inherent Power of Court of Chancery To Assess Damages Caused by Injunction---G. L. 1539---Injunction Damages between Parties Not Limited by Penalty in Bond---Chancery Rule 40---Inadequate Briefing---Supreme Court Will Not Search Record for Error---Allegation in Another Suit as Admission---Effect of Such Allegation Being on Information and Belief ---Determination Whether Weight of Evidence Justifies Finding---Presumption That Chancellor Duly Considered Evidence---Disposition of Cause When Material Finding Not Supported by Evidence.

1. Method of reproducing testimony of deceased witness, if relevant, by certified copy of transcript, is authorized by G. L. 1628.

2. In proceeding to assess injunction damages testimony of deceased witness given at hearing on question of increased injunction bond, where issues and parties were same, held properly admitted.

3. Objection that it did not appear whether witness based his testimony as to value of corporate stock upon actual knowledge or otherwise, and that nothing appeared as to debts or obligations of corporation, held to go to weight rather than to admissibility of testimony.

4. Any person who knows property and has an opinion of its value may give opinion for what it is worth, it being enough if witness is shown to have some peculiar means of forming an intelligent judgment as to value beyond what is possessed by men in general, and rule applying with equal liberality whether property is real or personal.

5. Competency of witness is preliminary question for court to decide before receiving testimony.

6. Ruling in favor of competency of witness, if supported by evidence of qualification, will not be disturbed.

7. Where testimony of expert was received, it will be assumed by Supreme Court, contrary not appearing, that witness was found competent.

8. Witness who was a member and one of directors of unincorporated association which bore his name and controlled two corporations and who had acted as agent for such association and for one of corporations, in entering into agreement to transfer stock of other corporation, held to be so situated and to have such means of information as to make him competent to express opinion as to value of such corporate stock.

9. Record of special meeting of stockholders of corporation voting to ratify and confirm action of individual, under written authority from majority of stockholders, in entering into escrow and option agreement for transfer of stock in another corporation owned by former corporation, record reciting agreement in full, held admissible as evidence of act of corporation in taking steps to part with such stock.

10. Price has some tendency to prove value, but weight of such evidence depends upon circumstances.

11. Admission of record of stockholders' meeting, ratifying and confirming escrow and option agreement for transfer of stock owned by it in another corporation, to prove value where stock appeared only as one item in list of securities and choses in action and no attempt was apparently made to separate its value from that of the aggregate, held harmless error.

12. Supreme Court will not assume that chancellor made any improper use of record of stockholders' meeting properly admitted in evidence, or that he considered it upon any issue as to which it was not admissible.

13. Admission of record of unincorporated association, controlling corporation, voting to extend authority to certain individual to act on its behalf in connection with escrow agreement relating to transfer of stock held by such corporation in another corporation, offered as bearing upon admissibility of record of special meeting of stockholders of such controlled corporation, ratifying and affirming action of same individual in entering into such escrow agreement, if error, held harmless.

14. In proceeding to assess injunction damages, finding that one of defendants filed answer and acted as counsel for himself, but not for co-defendant, and as to value of his services, held supported by evidence.

15. In such proceeding, finding that certain stock, at time of granting injunction, was more than sufficient to cover amount of judgment in action enjoined, held supported by evidence.

16. Allegation in bill of complaint, signed and sworn to by all plaintiffs, alleging power company had purchased and taken over physical properties of another corporation and issued common stock in payment, held judicial admission, and dispensed with necessity of introducing evidence to prove facts alleged.

17. In proceeding to assess injunction damages, findings regarding escrow agreement with respect to stock, and what had been done pursuant to such agreement, held immaterial, since there was no evidence that anything done under agreement had any effect upon value of stock.

18. Supreme Court will not consider exception to immaterial finding.

19. Defendant in injunction proceedings, held entitled to assessment of such damages as necessarily resulted to him from dissolved injunction.

20. In proceeding to assess injunction damages, burden was on enjoined defendant to establish damages by proper evidence.

21. In proceeding to assess injunction damages, where defendant had been enjoined from prosecuting action at law, in order to make such damages appear, he must prove that judgment in law action, collectible in whole or in part if injunction had not been issued, had become collectible to less degree, or wholly uncollectible by restraint imposed upon him.

22. Party enjoined from prosecuting action at law, after dissolution of injunction, if judgment is still collectible in part, must make reasonable use of means at hand to protect himself against loss.

23. In proceeding to assess damages by injunction from prosecuting action at law against corporation, where there was no evidence to show diminution in value of stock owned by corporation at time injunction issued, such stock being subsequently transferred by it, but returned to it after affirmance of decree dissolving injunction and before enjoined party had obtained his judgment, finding that it was without value was erroneous.

24. In such proceeding, fact that execution was issued on judgment in law action and returned nulla bona after dissolution of injunction, held, not evidence of non-existence of property situated beyond jurisdiction of court.

25. In such proceeding, finding that defendant was damaged by injunction issued against him from proceeding with action at law, to amount of his uncollected judgment therein, obtained after injunction was dissolved, held not supported by evidence.

2G. As between parties to suit, court of chancery has inherent power to assess damages caused by injunction, notwithstanding provisions of G. L. 1539 relating to assessment by reference to master.

27. Assessment of injunction damages between parties is not limited in amount by penalty of bond, in view of the provisions of chancery rule 40 and G. L. 1539.

28. Where brief on exception to failure to find as requested failed to point out evidence upon which requested finding was based, saying nothing beyond claim that excepting party was entitled to compliance with request, briefing is inadequate.

29. Supreme Court will not search record for grounds upon which to predicate error.

30. Allegation in pleading in another suit, held, not conclusive as judicial admission against pleader, but was competent evidence against him as admission of truth of fact alleged.

31. Circumstance that allegation in another suit was on information and belief does not affect its admissibility as admission against pleader, but merely its weight.

32. Whether weight of such evidence was sufficient to persuade chancellor of existence of fact embodied in request was for chancellor's determination.

33. Supreme Court will presume that chancellor gave due consideration to every circumstance appearing in case before him.

34. Ordinarily, where material finding has been made without evidence to support it, Supreme Court will reverse decree and enter such decree as ought to have been made below, but when justice requires, will reverse decree and remand for new trial.

APPEAL IN CHANCERY. From decree assessing damages in favor of defendant, by reason of issuance of an injunction, after hearing on matter of assessment of such damages and finding of facts by the chancellor, after the September Term, 1928, Windham County, Sherman, Chancellor, the plaintiffs appealed. The opinion states the case. Affirmed as to defendant Piper.

As to defendant Piper, the decree is affirmed. As to defendant Grimes the decree is reversed and the cause remanded.

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