Siller v. Philip
| Decision Date | 04 May 1928 |
| Citation | 141 A. 872 |
| Court | Connecticut Supreme Court |
| Parties | SILLER et al. v. PHILIP et al. |
SILLER et al.
v.
PHILIP et al.
Supreme Court of Errors of Connecticut.
May 4, 1928.
[COPYRIGHT MATERIAL OMITTED]
Appeal from Superior Court, New Haven County; Alfred C. Baldwin, Judge.
Action by Morris Siller and another against Nelson J. Philip and another, for breach of contract and conspiracy to defraud, tried to the court. Judgment for defendants, and plaintiffs appeal. No error.
Argued before WHEELER, C. J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
Carroll C. Hincks and Max Traurig, both of Waterbury, for appellants.
William B. Fitzgerald, Edward B. Reiley, and Timonty S. Sullivan, all of Waterbury, for appellees Nelson and Mary W. Philip.
Michael V. Blansfield, of Waterbury, for appellee Baurer.
HAINES, J. The appellants moved in the trial court for numerous and radical changes in the finding of facts; the motion was denied, and the same requests are now made in the reasons of appeal to this court. No exceptions were taken to this action of the trial court, and it is apparent the appellants seek to base their appeal upon the provisions of General Statutes, § 5832, rather than General Statutes, §§ 5828-5831. Whichever method of appeal is adopted, the grounds upon which the requests are made should be stated, either in the motion, the exceptions, or the reasons of appeal, as the case may be. It is only on the grounds stated in our rule that we can change subordinate facts appearing in a finding. Practice Book 1922, § 11, p. 309; De Feo v. Hindinger, 98 Conn. 578, 580, 120 A. 314; Ziglatzki v. Cummings, 102 Conn. 501, 502, 129 A. 274; Marciel v. Berman, 104 Conn. 165, 166, 132 A. 397; Perrotti v. Bennett, 94 Conn. 533, 537, 109 A. 890.
Upon proper motion we may, if the evidence warrants, strike subordinate facts from a finding, if such facts (a) were found without evidence, or (b) if stated in language of such doubtful meaning that their real significance does not clearly appear; and we may add further facts to a finding if they are material and are admitted or undisputed. Practice Book 1922, p. 309, § 11. Likewise, upon a proper motion, we may change a conclusion of fact contained in a finding, whether it be designated as a conclusion or not, if it was illegally or illogically drawn by the trial court from the subordinate facts, for this presents a question of law for our consideration. Kugel v. Angell, 74 Conn. 546, 550, 51 A. 533; Bell v. Strong, 96 Conn. 12, 14, 112 A. 645; Hayward v. Plant, 98 Conn. 374, 379, 380, 119 A. 341; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 540, 129 A. 527.
The reasons of appeal which seek to change the finding in the present case ignore the above requirements; no grounds of appeal whatever are stated for most of the requests. The rule that the grounds shall be distinctly stated is a salutary one and should be followed, and a failure to do so is a source of uncertainty and embarrassment to opposing counsel and to this court. We recognize, however, that the finding in the present case is of vital importance, and, since the motion to correct has been discussed at length by counsel on both sides, we shall consider it.
The tenth reason of appeal requests that sixteen specified paragraphs of the finding be stricken out. Some of these are subordinate facts, some are conclusions of fact, and others are mixed questions of law and fact. An examination of the evidence shows that in paragraph 16 of the finding the date—July 18th—is incorrect, and it is changed to the 16th; paragraphs 22 and 23 recite the sending back and forth of the check for $100, but slightly confuse the dates; this is not of great importance, and we may disregard it. Paragraph 32 is ambiguous. Baurer did learn that a paper dealing with a proposed sale of the property had been signed, but understood that it had been repudiated by the owner and that there was when he bought the property no existing contract of sale. Read in this sense, the finding stands. Paragraph 34, giving the value of certain building lots as...
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