Sowles v. Sartwell

• Decision Date: 30 November 1903
• Citation: 56 A. 282,76 Vt. 70
• Court: Vermont Supreme Court
• Parties: SOWLES v. SARTWELL.

56 A. 282

76 Vt. 70

SOWLES

v. SARTWELL.

Supreme Court of Vermont. Franklin.

Nov. 30, 1903.

Appeal in Chancery, Franklin County; Tyler, Chancellor.

Suit by Albert Sowles, administrator of the estate of William L. Sowles, deceased, against Alexander Sartwell. From a decree dismissing the bill, the orator appeals. Affirmed.

Argued before ROWELL, C. J., and MUNSON, START, WATSON, and STAFFORD, JJ.

E. A. Sowles and R. O. Sturtevant, for appellant.

C. G. Austin & Sons and E. A. Ayres, for appellee.

STAFFORD, J. The orator, in his brief, claims that the master erred in receiving and rejecting various pieces of evidence, but, save in one instance only, the report and the case as presented here afford no basis for raising the question. It is necessary that the report, either in itself, or by reference to exhibits or testimony which the advancing party spreads before us, should furnish the foundation for the legal question sought to be raised. It is not enough that the party, in his brief, or even in his exceptions filed to the report, states such supposed matters of fact.

The bill seeks an accounting for the proceeds of a farm carried on by the defendant at the halves. The orator claims that the lease was for one year only. The defendant claims it was for five. In a previous action at law, wherein the defendant was plaintiff, and the orator and one acting under his orders were defendants, the same question had been involved, and the verdict of the jury had been taken, with a special finding, which was that the lease was for five years. The master, finding that the real parties were the same in both cases, treated the verdict as conclusive, refused to receive evidence offered by the orator to show that the lease was for one year only, and found the fact that the lease was for five years solely upon the basis of the verdict. Whether he was correct in so doing, he submits to the court, and that question is thus saved to the orator. It cannot avail him, however, for "such findings are a part of the verdict, and effective as such." Lamoille County Bank v. Hunt, 72 Vt. 357, 361, 47 Atl. 1078, 1079.

The defendant was bound to pay one-half the taxes, but the orator, as the advancing party, was bound to show what such half was. Instead of doing so, he deliberately and against warning left the evidence in such a state that the master was unable to ascertain the fact; apparently proceeding upon the theory that the duty was upon the defendant to furnish the...