Gross Bros. Sales Corp. v. Liebmann, Liebmann & Salant

Haines, J. This case turns upon a single question, viz.: whether the plaintiff sold these goods to the defendants or to the Star Furniture Company. The plaintiff’s brief states the situation as follows: “The court found that the contract was between the plaintiff and the Star Furniture Company, and not between the plaintiff and the defendants, and it is from this decision that the plaintiff appeals.” The finding is specific: “21. This merchandise was obtained from the plaintiff on the account of the Star Furniture Company. 22. The defendants never promised to pay the plaintiff therefor, and this contract was also one between the plaintiff and their customer, the Star Furniture Company.” It obviously became neces *753 sary for the plaintiff to procure a change in this finding if it was to secure any relief from the judgment, and this was attempted by a motion to correct filed February 25th, 1925. The finding was filed December 4th, 1924, more than twelve weeks previous to the motion. No reason appears from the record, why the plaintiff did not file its motion within one week as required by law. General Statutes, § 5828; Practice Book, p. 95. The trial court denied the motion, and such denial is made the basis of some of the reasons of appeal to this court. The motion discloses no attempt to strike out or to modify in any way any of the paragraphs of the finding, but simply asks for the addition to the finding of certain claimed facts. Some of these are in flat contradiction of paragraphs in the finding, and the others are either inconsistent with such finding or are purely evidentiary matters which have no place in a finding. If the motion were granted, the resulting finding would be so contradictory and inconsistent that no judgment could be directed upon it. The plaintiff seems to have attempted to proceed under General Statutes, § 5829, § 5830, Practice Book, pp. 96, 97, but the other provisions of the statutes are ignored, and we find no exceptions and supporting evidence annexed to the motion. Instead, the plaintiff has filed a transcript of the entire evidence, which is only permissible, in proper cases, under the alternative method of appeal provided by General Statutes, § 5832. This was not filed within one week, as required by this statute, and no extension of time appears in the record, but the action of the trial court in certifying the evidence amounts to an extension of such time. Root v. Lathrop, 81 Conn. 169, 170, 70 Atl. 614. If we were to treat the evidence as properly before us for the purpose of correcting the finding, the addi *754 tions which the appellant seeks could be of no avail to it, for the reasons we have already suggested. Nor have we had our attention directed to any material fact found without evidence nor to the omission of any material fact which is undisputed. The facts in this case material to the question as to who were parties to the contract of sale now set up, were found by the trial court, for the most part, upon conflicting or contradictory testimony, and so are not matters within our jurisdiction. The motion to correct the finding was properly denied. There are fifteen stated reasons of appeal, and all except the first four and the last, are based upon the trial court’s denial of the motion to correct, and therefor» merit no further attention. The remaining reasons of appeal raise the question of the correctness of the trial court’s conclusion that the contract was made by the plaintiff with the Star Furniture Company and not with the defendants. No' discussion of these reasons of appeal is necessary, because upon the finding as it stands no other conclusion could have been reached by that court than the one in question. There is no error. In this opinion the other judges concurred.