John C. Coolidge v. Warren R. Taylor And Trustee

• Decision Date: 29 August 1911
• Citation: 80 A. 1038,85 Vt. 39
• Parties: JOHN C. COOLIDGE v. WARREN R. TAYLOR AND TRUSTEE
• Court: Vermont Supreme Court

80 A. 1038

85 Vt. 39

JOHN C. COOLIDGE v. WARREN R. TAYLOR AND TRUSTEE

Supreme Court of Vermont

August 29, 1911

[Copyrighted Material Omitted]

October Term, 1909. Re-argued May Term, 1911.

ASSUMPSIT for the collection of taxes, begun by trustee process. Plea, the general issue. Trial by jury at the June Term, 1907, Windsor County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The facts determinative of the trustee's liability were found and reported by a commissioner. The opinion states the case.

Both judgments reversed and cause remanded.

Davis & Davis and Frank A. Walker for the defendant and trustee.

Present: ROWELL, C. J., MUNSON, AND WATSON, JJ.

OPINION

ROWELL

This is a statutory "trustee suit" for the collection of a tax assessed against the defendant on his grand list in Plymouth in 1898.

The record of the warning of the town meeting in March of that year was prima facie evidence that the warning was posted as required by statute. Lemington v. Blodgett, 37 Vt. 210. So here was proof that this first step was taken according to law, which was enough, there being nothing to contradict it.

It was not error to allow one of plaintiff's witnesses to say that the defendant lived in Plymouth in 1898, for the word "live", as used in the question, was not asking for the ultimate fact of residence, but only for an index of that fact, which was proper. Mann v. Clark, 33 Vt. 55. And for the same reason it was competent for the plaintiff to ask the witness about seeing the defendant that year at the Taylor homestead in Plymouth.

The listers made the defendant's list that year because he did not, though requested, return an inventory. They ascertained his taxable property as best they could, appraised it, and doubled the amount, and then further assessed him $ 10,000. Spaulding, one of the listers, testified how the list was made. On cross-examination he was asked what he had to base the 10,000-dollar assessment upon. The question was excluded. The defendant then offered to show that said assessment was made arbitrarily, without any foundation, out of malice towards him, and with a determination to injure him in the matter of his assessment in Plymouth. This was also excluded. The imputation of malice and a determination to injure, add nothing to the substance of the offer for the only evidence vouched for therein is the impeachment of the assessment, and they can not influence that question. Nor can the action of the listers in this behalf be collaterally impeached in the way offered. This is shown by Fulham v. Howe, 60 Vt. 351. 14 A. 652. in which this precise question was so ruled, on the ground that listers act judicially in making such further assessments, and consequently the ordinary rules as to the collateral impeachment of judgments applies.

The defendant claimed, and his evidence tended to show, that his taxable residence was in Woodstock the first day of April, 1898, whither he moved from Sherburne in March of that year. It appeared that he hired a box in the Woodstock post-office, and held it during that year, and received his and his wife's mail through that office. As a declaration of his residence, and as tending to show that it was in Woodstock as claimed, the defendant offered in evidence an official one-cent stamped envelope, whereon was printed, "Return to Warren R. Taylor, Woodstock, Vt.", and in that connection offered to show that such envelopes were in use by him after he moved to Woodstock. The envelope was excluded, and properly, for as a declaration it was not admissible unless accompanied by an act that was itself admissible, and the personal presence of the defendant in Woodstock cannot be regarded as an act that rendered the envelope admissible as explanatory of its character. Nor does it appear that the envelope antedated the controversy, which was essential to its admission as a self-serving declaration. Fulham v. Howe, 62 Vt. 386, 20 A. 101.

It is claimed that it was error to allow the plaintiff to testify in rebuttal how milk from the Taylor farm was entered at the cheese factory in different years, because it appeared on cross-examination that he had no personal knowledge as to the delivery of milk from that farm in any of those years, but got his information from the books and memoranda kept from time to time by others at the factory. But the cross-examination did not disclose that he had no personal knowledge as to the delivery of milk from that farm, but disclosed the contrary, as did the examination in chief. This being the only thing urged under the exception, the ground of which does not appear, it is not sustained.

The defendant claimed, and his evidence tended to show, that he moved from the Taylor farm in Plymouth to Sherburne in the spring of 1888, and resided in Sherburne till he moved to Woodstock in March, 1898. In rebuttal the plaintiff introduced in evidence a certified copy of the record of a judgment in his favor, rendered at the May Term, 1897, of Windsor County court, in an action of trespass for false imprisonment in favor of the defendant against him, in which he justified as constable and collector of Plymouth under a warrant and rate bill received from the treasurer of said town against delinquent taxpayer of which the defendant was one. Said copy was received to show that this defendant's residence was in Plymouth on the first day of April, 1889, and not in Sherburne, as he claimed, and the plaintiff says that that judgment conclusively settled that question as between him and the defendant. But that judgment does not settle the fact that the defendant's residence was in Plymouth the first day of April, 1889, for he might have been properly taxed in Plymouth though he resided in Sherburne, as it does not appear that his poll was taxed in Plymouth that year, nor what the property was that was taxed there. Now taxable real estate is to be set in the list in the town where it is situated, though taxable personal estate is, in general to be set in the list to the owner in the town in which he resides; yet there are many exceptions to that, one of which is that goods, wares, merchandise, stock in trade, including stock used in the business of the mechanical arts, and machinery used in manufacture, are to be set in the list to the owner in the town where the property is situated. So horses, asses, mules, neat cattle, and sheep, are to be set in the list to the owner, or if he resides out of the State, to the keeper, in the town in which they are last kept on the first day of April. So personal estate belonging to wards, not embraced in certain provisions of the statute, is to be set to the guardian in the town where the ward resides, if he resides in the State.

It is easy to see, therefore, the record not showing nor it otherwise appearing that the defendant's poll was set in the list, nor what proprty was taxed, that said judgment can not be said to settle that the defendant's residence was in Plymouth as claimed. It was harmful error, therefore, to admit it for that purpose.

The plaintiff was allowed to show in rebuttal that the defendant was not listed in Woodstock in 1897 nor 1898. There had been no claim made nor evidence given by the defendant that he resided in Woodstock at any time in 1897. The testimony was objected to as tending to mislead the jury, and as setting up an issue in rebuttal not made by the defendant in his defence. But that objection is not made now, but it is objected that if the defendant did reside in Woodstock the first day of April, 1898, it was not his duty under the statute to return an inventory unless thereunto requested by a lister, and that that not appearing, the fact that his name was not on the grand list of that year was of no evidentiary value. But the objection made below being abandoned, this cannot be substituted, and is not considered.

It was proper for the plaintiff to show in rebuttal by Mr. Plumley that the defendant's list was not taken in Sherburne in 1897, for the defendant had claimed, and given evidence tending to show, as we have seen, that he lived in Sherburne from the spring of 1888 to the time he moved to Woodstock in March, 1898.

It was not harmful error, if error at all, to let the plaintiff show by Mr. O'Neil that the defendant's list was not taken in Sherburne in 1898, for according to the defendant's claim it should not have been.

The grand list of Sherburne for 1897 was properly admitted for the same reason that Plumley's testimony was; and the admission of the grand list of that town for 1898 stands the same as does the admission of O'Neil's testimony.

The testimony of Mr. Wilson was excepted to because not in rebuttal. The court admitted it, but on what ground does not appear. It will, therefore, be taken to have been on the ground of discretion, which the court had a right to do, though the testimony was not in rebuttal.

It was error to admit the milk book of the cheese factory containing entries purporting to show the delivery of milk there in 1897 in the name of the defendant, and to admit the testimony of the secretary of the cheese company based thereon, who knew nothing about the correctness of the entries except that he transcribed them from daily memoranda kept by the cheese maker as the milk was delivered, and who was not called as a witness nor his absence accounted for.

It is not that the entries are not original because thus transcribed, but that the correctness of the memoranda was not shown by the person who made them, nor in any other way. Without this, the entries in the book, and the testimony of the witness based thereon, were mere hearsay. In Chaffee v. United States, 18 Wall. 516 541, 21 L.Ed. 908, the rule that...