Siller v. Philip

• Decision Date: 04 May 1928
• Citation: 107 Conn. 612,141 A. 872
• Court: Connecticut Supreme Court
• Parties: SILLER ET AL. v. PHILIP ET AL.

141 A. 872

107 Conn. 612

SILLER ET AL. v. PHILIP ET AL.

Supreme Court of Errors of Connecticut.

May 4, 1928

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.

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.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

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 $600, is of doubtful accuracy, but this, too, is of little importance and we disregard it.

A careful reading and checking of the entire evidence satisfies us that all the remaining subordinate facts of these sixteen paragraphs are supported by some evidence and, save in a few unimportant particulars, are correct; and that the inferences of fact which appear in some of the paragraphs are logical and reasonable deductions from the established subordinate facts. Save as thus indicated, the motion to strike out these sixteen paragraphs is denied.

It is sought to strike from paragraph 14 the words, " And for a long time prior thereto." This refers to the knowledge of the plaintiff Siller that Nelson J. Philip owned the property and is a fair inference from the facts of his previous relations with Nelson J. Philip, his work on the property, and his attempts to sell it for Nelson J. Philip. Those portions of paragraphs 9, 20, and 21 to which objection is made are supported by a reasonable interpretation of the evidence. The finding of $15,000 (paragraph 36) as the fair market value of the property in question is the conclusion of the court upon the testimony of various witnesses and of the assessed value. The accuracy of this conclusion may be a fair subject of discussion, but we cannot say that it is so illogical or unreasonable that it should be stricken out; furthermore, it is not of controlling importance that this valuation should be fixed with absolute accuracy.

The appellant seeks to add to the finding fifty full paragraphs of the draft finding and nine additional statements of fact. The entire finding contains but forty-six paragraphs, and an examination of the proposed changes and additions shows that the appellants are seeking to virtually substitute a nearly complete finding for that made by the court. No grounds whatsoever are assigned for this motion, and we would be justified in refusing it consideration; but for reasons already stated, we have given it a detailed examination. It is to a very large extent the plaintiffs' version of the same transactions detailed in the finding and at many points conflicts with the finding. This results from the fact that the trial court gave credit to the defendants' as opposed to the plaintiffs' version. This court cannot make such changes in a finding. Some facts proposed are not denied, but we cannot add them for that reason. Failure to deny a fact in evidence does not, of itself, make it an undisputed fact which should be added to the finding; for the trial court is at liberty to believe or disbelieve such testimony. Allis v. Hall, 76 Conn. 322, 340, 56 A. 637; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 540, 541, 129 A. 527; Cishowski v. Clayton Mfg. Co., 105 Conn. 651, 655, 136 A. 472.

Finally, our study of this request convinces us that such facts as it presents in addition to those in the finding would not require or warrant changing the final conclusions and therefore may be classed as unimportant for the purposes of this inquiry. We are therefore compelled to deny this motion.

Nine claims of law made by the appellants were overruled by the trial court, and this action of that court is made the basis of nine of the assignments of error. In a later paragraph it is assigned as error that the trial court refused to strike out five conclusions of law which it had reached, but, again, no grounds for the claims of error are alleged. We test the validity of the trial court's action by the facts appearing in the completed finding.

So far as those facts serve that purpose, they are the following:

These defendants Philip were husband and wife, living together, the former for many years and still being employed in a foundry and machine company in Waterbury. Some years ago he lost a leg in an accident and has ever since been in poor health. He and his wife had bought and sold some pieces of real estate during the ten-year period preceding the purchase of the property in question, the first purchase being made exclusively with funds which he had inherited from an uncle and subsequent purchases were made with the proceeds of this first transaction, together with cash received from the earnings of the husband. As a matter of convenience and because of the injury and poor health of the husband, the banking account was carried in the name of the wife. The charges for repairs and supplies for the property in question were likewise charged to and paid by the wife, though the contracts for such repairs and supplies were often made by the husband in person and paid for by him in cash or charged to the wife as above stated. It was from these funds so created and handled that the property in question was purchased January 29, 1920, the title being taken in the name of the wife, but on October 7, 1922, deeded by her to the husband, Nelson J. Philip. It was nearly four years later--July 15, 1926--that the plaintiff...