Wales v. Graves

Hall, J. This is an action upon a written contract by the terms of which the defendant promised to pay f>30 upon the delivery to him of a certain illustrated historical work entitled “The New England States, their Constitutional, Educational, Commercial, Professional and Industrial History,” ' to be published by the plaintiffs, D. H. Hurd & Co., in three or more volumes, and to be of the character represented by the plaintiffs’ agent and by a printed prospectus. Four reasons of appeal are assigned. The first three are for the purpose of procuring a correction of the finding, that it may present the questions of law decided by the trial court. Certain issues of fact were raised by the pleadings and decided in the Court of Common Pleas. The record does not disclose that during the trial of the case any question of law was decided by that court, nor that any claim of law was made by counsel. Apparently the only ruling upon a legal *360 question was in rendering judgment for the defendant, upon the facts found. To entitle the plaintiffs to a correction of the finding on this appeal, it must not only be made to appear by the evidence certified, either that some fact material to that ruling and proved upon the trial has been omitted from the finding, or that some material fact contained in the finding was not proved, but also that after the trial judge had filed his finding, and within the time fixed by statute, the plaintiffs filed a written motion requesting these particular corrections to be made, and stating their “reasons and grounds for the same.” Only those exceptions to the finding of any fact, or refusal to find any fact, which are a part of such motion to correct, can properly be assigned as reasons of appeal to this court. Public Acts of 1897, Chap. 191, §§ 8, 9 and 10. The only motion to correct the finding contained in the record is that requesting the trial judge to add to the finding the paragraph described in the third reason of appeal. The plaintiffs have therefore failed to make the necessary motion to correct, to enable them to sustain the first and second reasons of appeal. But, aside from that failure, the only evidence certified to us to support these two, as well as the third, reasons of appeal, is a copy of the publication in question; and this we think is not sufficient to sustain them. The third reason of appeal is based upon the refusal of the court to add to the finding the statement that if the non-historical matter had not been contained in the work, the remainder of its contents would have met the requirements of the title and of the oral and written representations, “ and would have fulfilled adequately'- and satisfactorily the terms of the subscription contract.” There was no claim that the work tendered to the defendant and which he refused to receive, did not contain the objectionable biographical articles and those descriptive of business houses, referred to in the plaintiffs’ motion as non-historical matter. It was therefore immaterial to the issue raised by the pleadings whether, if it had not contained such matter, it would have answered the terms of the contract. *361 The question was whether the work tendered the defendant, the contents of which are described in paragraph 8 of the finding, was the work promised by the contract of subscription. Probably the plaintiffs meant by their motion to ask the judge to add to the finding, either as a statement of fact or as a ruling of law, that independently of the so-called non-historical matter, the books contained all that the plaintiffs had promised, and that by having furnished that, and something more, they had not failed to fulfill the subscription contract. The trial court found that the articles announced in the prospectus were all included in the published work, and that they were suitable to be included in such a historical work as that contracted for; but refused to hold or find that the historical articles, of the class first described in paragraph 8 of the finding, and which occupy only about one-half of the four volumes, constituted of themselves such a history of the New England States as was called for by the contract. Assuming that this was a refusal to find a fact claimed to have been proved, rather than a refusal to rule as requested upon a' matter of law, we discover in the evidence before us no ground for holding that the trial court erred in deciding that both the publishers and the subscribers properly interpreted the contract as requiring the publication of something more than what is contained in these volumes, exclusive of the said non-historical matter referred to in paragraph 8 of the finding as the two other added classes of articles. The fourth reason of appeal, that the court erred in rendering judgment in favor of the defendant upon the evidence submitted in the case, is insufficient as an assignment of error, and raises no question for our consideration. Anderson v. New Canaan, 70 Conn. 99. There is no error. In this opinion the other judges concurred.