Rixford v. Miller

Revision of Auditor's Finding. Presumption of the Continuance of Things in the State in which They Have Once Existed. Burden of Proof of Existence of Known Attachable Property, under s. 15, c. 63, Gren. Sts. The question being whether (.he evidence, q. v., tended to establish facts found by the auditor, and it appearing that it did, held, that his finding was conclusive, and not to be revised upon exceptions. Tilings proved to have once existed in a particular state, are presumed to continue in that state till the contrary is shown. Thus, where in book account defendants relied on the Statute of Limitations, and plaintiff proved that defendants were resident in New York when the cause of action accrued, it was held that they were presumed to continue to reside there, and that it devolved on them to show that they did not. Plaintiff, in order to remove the alleged bar of the Statute of Limitations,' liavingshown that defendants were non-residents of the state when the cause of action accrued, it was held that the burden was on them to show that they had known attachable property within the state.

Book Account.' The action was brought on August 30, 1875. The plaintiff sought to recover for a lot of scythes that he claimed to have shipped to the defendants on a written order dated “ Ohateangay,. Sept. 21st, 1866,” purporting to have been signed by the defendants, and D. W. Eillebrown, the plaintiff’s agent. The order, which was in evidence, was for fourteen dozen of scythes of various kinds, at the aggregate price of $176, to be shipped to Ohateaugay, and bore an indorsement of two and one twelfth dozen, of the value of $26.08, that were returned in accordance with a stipulation therein contained, and contained a promise to pay for the scythes so ordered, on September 1, 1867. Upon the hearing before the auditor plaintiff testified that he received said order, probably in October, 1866, either by mail or by the hand of said Fillebrown ; that he did not know the handwriting of what purported to be the defendants’ signature thereto ; that he shipped the scythes called for by the order, in May, 1867, delivering them to the carrier either at Swanton or at St. Albans, and that those indorsed on the order were returned in the following fall; .that a few years after the account become due, he sent it for collection to P. B. Fisk, of Ohateaugay,*N. Y., who kept it a few years, and returned it within a year before the bringing of this suit, never having, as plaintiff thought, collected anything thereon. The defendant introduced as a witness one Beckwith, a practicing attorney in Ohateaugay, who testified that six years was the time limited by the law of New York for bringing actions on book account. The defendant Bort was present at the hearing, and did not .deny the order nor the receipt of the scyjthes. From such evidence and the silence of defendant Bort, the auditor found that the scythes specified in the account were delivered at the St. Albans or the Swanton station, on May 30, 1867, in accordance with and upon the order, directed to the defendants, and that the defendants received them; inferring that they were so directed, from the plaintiff’s testimony in regard to shipping them, and that they received them, from the fact that some of them were returned, and the fact that defendant Bort did not deny either the order or the receipt of the scythes; that the two and one twelfth dozen scythes were returned as indicated by the indorsement on the orddr ; that the plaintiff’s account showing charge of $176 for scythes shipped, and credit of $26.08 for scythes returned, was correct; that the balance due therdon, including interest to February 1, 1876, was $225.63, which, with interest thereon from that date to the time of judgment, plaintiff was entitled to recover, unless barred by the Statute of Limitations ; and that the statute of New York was the same as that of this state. From the evidence afforded by said order, and. from the fact that the scythes were shipped to Chateaugay and the bill sent there for collection and some of the scythes returned, the auditor found that at the time the scythes were delivered to the carrier the defendants resided at Chateaugay. There was no evidence as to the defendants having resided, nor any as to their having had known attachable property, in this state. To the report of the auditor, which stated the evidence introduced as well as the findings, the defendants excepted, for that there was no evidence in the case from which the ^ auditor could legally find that the scythes were ever ordered by, or directed or delivered to, the defendants, or that the defendants resided in the state of New York, and for that no inference against the defendants should have been drawn from the presence of the defendant Bort; and claimed that as the cause of action accrued more than six years before suit was brought, and as plaintiff had not shown that the case came within the provisions of s. 15, c. 63, Gen. Sts., it was barred by the Statute of Limitations. But the court, at the April Term, 1876, Royce, J., presiding, rendered judgment on the report for the plaintiff; to which the defendants excepted. There was no proof in the case to support the findings of the auditor. There was no proof of the execution of the order, and the order is not competent evidence against the defendants. The only evidence material to plaintiff’s case is the testimony of the plaintiff. The first fact reported as found is, that the goods were delivered either at the railroad station in St. Albans or Swanton, “ in accordance with and upon the order.” This finding goes further than the testimony. The plaintiff only testified that he shipped the scythes “ called for by the order.” The auditor infers that the scythes were directed to the defendants from the plaintiff’s testimony in regard to shipping them. The testimony of the plaintiff, that he shipped them either from Swanton or St. Albans, without stating where or to whom they were directed, is not evidence from which a legal inference can be drawn that they were directed to the defendants. The inference is the other way. If they were so directed, the plaintiff, being the person who shipped them, knew it, and as he was a party -in interest, the inference and presumption is that he would testify to every fact within his- knowledge that would promote his interest. The auditor also infers that the defendants received the scythes, from the fact that some of them were returned, and because defendant Bort was present at the hearing and did not deny either the order or the receipt of the scythes. There was no proof in the case that the defendants were the parties who returned the scythes. That fact must also have been inferred. Having inferred that fact, he bases upon it the second inference, that deiendants received the scythes. This is carrying the matter of inference a step too far. But this is not more absuz-d than the inference drawn from the fact that defendant Bort was present and did not deny either the order or the receipt of the scythes. Why should he have denied the order ? It had not been proved against him. Why should he have denied the receipt of the scythes before there was any evidence in the case that he had received them ? The delivery of the scythes and the receipt of them by the defendants wez-e material and decisive facts in the case, and could not be established by mere infez'ence. Infez’ence is a conclusion drawn from facts which are established by proof. Bou v. Law Diet. tit. Inference. Conclusions may as well be drawn by the court as by the auditor ; and when the facts from which they are drawn are stated, the court can revise the inferences of the auditor. Briggs v. Estate of Briggs, 46 Vt. 571. There is no finding that the defendants ever ordered the scythes; no evidence to connect the defendants with the transaction. If they are made liable in the case, it cannot be upon the proof, but only upon the auditor’s report, which goes further than the plaintiff 'was willing to go in his testimony. If there is any liability, it is created by the report and not established by the pi’oof. If any cause of action is established by the report, it is shown by the exceptions to have accz'ued more than six years before suit was coznmenced. The defendants were thus entitled to judgment, unless such a state of facts was shown as, under the provisions of s. 15, c. 63, of the Gen. Sts., would prevent the operation of the Statute of Limitations. And that was for the plaintiff to show; not for the defendants to negate. Davis, admr. v. Marshall, 37 Vt. 69 ; Muss, admr. v. Ray, 29 Vt. 381; Hall v. Nasmith, 28 Vt. 791. The auditor found and inferred that the defendants resided at Chateaugay, upon the evidence of the plaintiff, and from the facts that the scythes were shipped to Chateaugay and the account sent there for collection, and some of the scythes were returned. But such findings and inferences are not enough to save the plaintiff’s case. They only show a residence at Chateaugay when the scythes were delivered to the carrier. The residence should be shown to have been there when the cause of action accrued, and it did not accrue (if the order is to be treated as evidence), until the first of September, some three months after such delivery. No length of residence without the state is shown. Hence, the time to be deducted under the statute cannot be determined. There was no evidence or finding that defendants did not have ■ “known property within this state, attachable by ordinary process of law, since the cause of action accrued.” This was also a fact for the plaintiff to show if he would avoid the statute bar. The plaintiff proved that the defendants resided and were out of the state when the cause of action accrued, and that their residence was at Chateaugay, in the state of New York. The legal presumption is, in the absence of any proof to the contrary, that they continued to reside there. 1 Greenl. Ev. 41, 44; Gray v. French, 23 Conn. 513 ; Nixon v. Palmer, 10 Barb. 175. When the defendant is out of the state when the cause of action accrues, the Statute of Limitations will not run on the demand unless he returns into the state and that fact is known to the creditor. Hill v. Bellows, 15 Vt. 727. And the fact that his return into the state was known to the plaintiff, must be shown by the defendant. Masozon v. Foot, 1 Aik. 282. And so,' if the defendants would avail themselves of the Statute of Limitations as a defence, upon the ground that they had known property in the state, which, by the ordinary process of law could have been attached, it is incumbent upon them to prove that fact. Sill v. Bellows, 15 Yt. 727.