Hackel v. Burroughs

• Decision Date: 07 October 1952
• Docket Number: No. 1033,1033
• Citation: 91 A.2d 703,117 Vt. 328
• Parties: HACKEL v. BURROUGHS.
• Court: Vermont Supreme Court

Page 703

91 A.2d 703

117 Vt. 328

HACKEL v. BURROUGHS.

No. 1033.

Supreme Court of Vermont.

Oct. 7, 1952.

Vernon J. Loveland, Rutland, for plaintiff.

Bloomer & Bloomer, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

ADAMS, Justice.

This is an action of tort brought in the Rutland Municipal Court for the conversion of certain articles of personal property upon which the defendant claimed a lien for storage charges. Trial was by the court. Findings of fact were made and filed. Judgment was entered for the plaintiff. The case is here on exceptions of the defendant to certain findings, to the refusal to find as requested and to the judgment.

Exceptions to findings numbers 2 and 3, to requests to find numbers 3, 4, 5, 6, 20, 22, 24, 25, 26, 30, 34, 36, 37, 38, 42, 44, 47 and 48, also to the judgment are not briefed so they are waived. Dunbar v. Godbout, 105 Vt. 448, 452, 168 A. 551; Rich v. Wry, 110 Vt. 307, 312, 6 A.2d 7; Cook v. Holden, 113 Vt. 409, 411, 35 A.2d 353; O'Conner v. Vermont Transit Co., Inc., 116 Vt. 6, 8, 68 A.2d 699.

The defendant has briefed exceptions to the failure to find his requests numbers 7, 8, 9, 11 and 40. The record shows that he did not take any exceptions to the failure to the court to make these findings; therefore, there is nothing for this Court to review and the question is not before us. White River Chair Co. v. Connecticut River Power Co., 105 Vt. 24, 53, 162 A. 859; Wool v. Larner, 112 Vt. 431, 437, 26 A.2d 89.

The defendant has briefed exceptions to the failure of the court to find his requests numbers 17, 18, 19, 21, 23, 31, 32, 33, 35, 41, 43, 45, 46 and 49. His exceptions as filed state the following grounds for all of these requests collectively, after enumerating the requests by number, 'that the undisputed evidence in the case required such a finding and the law of the case required such a finding'. Such exceptions are inadequate, inappropriate and too general to require attention. Morgan v. Gould, 96 Vt. 275, 279, 119 A. 517 and cases cited; Little v. Loud, 112 Vt. 299, 302, 23 A.2d 628, and cases cited; Holton v. Ellis, 114 Vt. 471, 484, 49 A.2d 210. In each of these cases the language used in the exception was substantially the same as in the instant case.

This disposes of all of the exceptions of the defendant or points briefed by him except the exceptions to findings number 13 and 14. Finding 13 is as follows:

'The defendant did not at any time herein material carry on the business of a warehouseman, nor did he engage in the business or hold himself out as engaged in the business of storing goods for hire for the general public.'

The exception to this finding is 'on the ground that the finding is not warranted by the evidence, there is no evidence to substantiate the finding, that it is a conclusion of law and an erroneous conclusion'.

So far as it is a question of fact, there was very little, if any, dispute in the evidence. The defendant testified that he worked for the Extension Service of the University,--Department of Agriculture; that as a side line, he and his wife ran some tourist cabins in Pittsford; that he had no particular business apart from the extension service and the tourist cabins; that they were not in the warehouse business or pretended to be in the storage business; that they had been in business there eleven years and, prior to April 24, 1950, had stored furniture for three different parties, sometimes for use and sometimes for cash; that subsequent to that date, they had stored no goods other than the ones in question; that they never rented storage space to strangers but as an accomodation to people they knew; that they had no particular facilities for storage; that they had no sign outside or on the premises advertising that they conducted a public or any kind of a warehouse and that they had never given a warehouseman's receipt.

Where findings are challenged upon the ground that they are without evidentiary support, they must stand if there is any legitimate evidence fairly and reasonably tending to support them. Village of St. Johnsbury v. Cenedella, 109 Va. 174, 180-181, 194 A. 382, and cases cited; Belville v. Belville, 114 Vt. 404, 407, 45 A.2d 571; Holton v. Ellis, supra, 114 Vt. 471, 488, 49 A.2d 210. The evidence that we have set forth meets these requirements and it is clear that the trial court was warranted in making the finding as a factual matter. In fact, the defendant in his brief concedes that the defendant did not store goods for the general public.

The defendant challenges the finding as a matter of law on the ground that, on the facts found and which should have been found, the defendant was a warehouseman as defined in V.S. 47, § 5694, which is a part of Chapter 257, entitled, Uniform Warehouse Receipts Act. The definition therein is: "Warehouseman' means a person lawfully engaged in the business of storing goods for profit'.

As we have seen, the facts which the defendant says should have been found are not available to him here. As a conclusion of law, the finding cannot stand if it is inconsistent with the findings upon which it is based. Abatiell v. Morse, 115 Vt. 254, 259, 56 A.2d 464, and cases cite...