McKeon v. Byington

Andrews, C. J.

Where a case is referred to a committee for a hearing and finding thereon, the committee may report in detail all the proceedings which occur at the hearing,—■ all the objections taken and all the interlocutory questions made, with the rulings thereon—as well as the finchngs upon the issues in the case. If this is done, a party who is aggrieved by any of these rulmgs has them spread on the record, so that when the report comes up for acceptance he can ask the court to pass upon them. But sometimes the committee reports only the ultimate facts found. If this is done, a party who has been aggrieved by any rulings at the hearing sets forth m a remonstrance all those rulings and questions of which he complains, and in that way spreads them upon the record, and thus enables the court to determme upon their correctness. In the present case the latter course was taken.

It is certainly within the jurisdiction of the Superior Court to decide upon a report which its own committee has made to it; so that there is nothing erroneous in the first reason of appeal. And as on his remonstrance the defendant had the benefit of all the questions he desired to raise, there was no need of sending the report back to the committee. There is, therefore, no error in the fifth and sixth reasons.

The rule in respect to the assignment of errors, requires *433 that the precise matter of error, or defect in the proceedings in the court below, relied on as ground of reversal, must be set forth. No others will be considered by this court. Rule XYI, 58 Conn. 584 . Several of the reasons do not conform to this rule. They present no questions which this court can consider. Of this kind are the second, third, fourth, seventh, eighth, twentieth and twenty-fifth reasons.

The ninth, tenth and eleventh reasons have reference to a suit of clothes furnished by the plaintiff on the written order of the defendant and delivered to one Owens; the price of which was $31. The defendant now argues that this sum ought not to be charged against him in this suit, because the clothes were to be worn by one Owens, while the complaint asks to recover only for clothes furnished to the defendant and his sons. We think the committee properly disregarded a technicality so thin and so devoid of merit as that.

The twelfth, thirteenth and sixteenth reasons assign as error that it is not found that the clothing furnished to the sons of the defendant was for their support. It is stated in the report that the defendant had four minor sons for whom clothing was furnished. Ordinarily clothing furnished to a minor child on the order of the father would he assumed to be for its support. It does not appear that any of these sons became of full age while this account was being incurred; and as all the clothing was furnished on the order of the father, the question of support is not material. There is no error in these assignments.

It seems probable that the fourteenth reason does not clearly express the thought of counsel. Whether or not the plaintiff made and delivered clothing to the defendant’s sons, was expressly in issue by the terms of the complaint and the bill of particulars. The same probability seems to attach to the fifteenth reason. It assumes that the defendant was not liable for the clothing furnished to his sons, a conclusion exactly contrary to the facts found. The same criticism also applies to the seventeenth reason because it assumes, contrary to the fact, that the verbal order given by the defendant to the plaintiff, in 1867, was an agreement to answer for *434 the debt of another. There is no error in any of these assignments. Nor is there in the eighteenth. The fact that two of the defendant’s sons went away from his home, did not revoke his order to the plaintiff to furnish them with clothes. Besides, there is no evidence that the plaintiff had any knowledge that they were absent. The nineteenth reason is evidently an inadvertence. The court ruled in accordance with the defendant’s claim.

The twenty-first, twenty-second, twenty-third and twenty-fourth reasons, each refer to the new promise which the plaintiff alleges the defendant had made.

The defendant set up in his second defense that the cause of action stated by the plaintiff did not accrue within six years next before the commencement of this action. The plaintiff denied this defense. An examination of the record shows that this defense was not sustained. The committee’s report says, in paragraph eleven, that the parties agreed that the rent of the store should be applied as it should become due, as payment on the account. It appears by the bill of particulars that the rent had been in fact so applied, and in paragraph twelve, that the last rent became due on the 1st day of April, 1882. By the agreement tins w“as a payment by the defendant of the amount of the yearly rent, and one which should be credited on that date. “In a matter of account, every proper item of credit on one side is presumed to be intended, and will therefore operate, as a payment upon existing debits on the other. The account is an entirety. The items of debt and credit are the elements of which that entirety is composed. Credits on one side are applied to the extinguishment of debits on the other, as payments intentionally made thereon, and not as set-off of one independent debt against another.” Sanford v. Clark, 29 Conn. 457, 462 . This was a payment which prevented the the statute of limitations from running till that day. The action was brought on the 27th day of March, 1888, and within six years after that payment.

It is veiy possible that the facts found were sufficient to establish a new promise; but we have no occasion to pass *435 upon these, because the statute of limitations had not theu run against the account. There is no error on the defendant’s appeal.

There is, however, error on the plaintiff’s appeal. The plaintiff is entitled to have interest on the sum of $1,079.50 from the first day of April, 1882. The mutual accounts ceased on that day, and he is entitled to have damages from that date to the date of judgment. . The case must be remanded to have interest computed for that time; and then judgment should be rendered for the plaintiff to recover the amount.

Error on plaintiff’s appeal, and case remanded.

In this opinion the other judges concurred, except Hamersley, J., who dissented as to the allowance of interest.