Rixford v. Miller

The opinion of the court was delivered by’ Ross, J. Facts found by an auditor from testimony tending to establish such facts, are as conclusive upon the parties as the verdict of a jury. This court never revises such finding of facts on exceptions. The farthest it has gone is, to correct an erroneous legal inference drawn by an auditor from facts found by him, which inference the court, from the report, can plainly see that the auditor has been led to make either from having entertained an erro-' neous view of the law applicable-to the facts, or from having misapplied the law to the facts ; and it will correct such an inference only in cases where the auditor has stated all the facts found by him from which such legal inference is to be made. I., The first question raised by the exceptions is, whether the evidence before the auditor tended to establish the facts found by him. The auditor has found that the plaintiff received an order for fourteen dozen scythes, purporting to be signed by the defendants, directing him to send the scythes to Chateaugay, New York; that the plaintiff shipped the scythes to the defendants at Chateaugay ; that the defendants received the scythes, and kept them, except a portion which were returned, and that the defendants at the time of the receipt and return resided at Chateaugay, New York. The evidence of the plaintiff was quite brief, but we think it fairly tended to establish all the facts found and inferred by the auditor. The plaintiff testified to having received the order in October, 1866 ; that he did not know in whose handwriting the signature to the order was ; that within the time named in the order, he “ shipped the scythes called for by the order,” and subsequently received back a part of the scythes, which he endorsed on the order. The order provided for the return of such scythes as did not answer the warranty. We think the fair, legitimate meaning of the plaintiff’s testimony is, that he sent the scythes to the address of the defendants at Chateaugay, [325] New York, and that from the fact that a portion of them were returned in accordance with the provisions of the order, a legal presumption arose that the defendants received and used the scythes shipped and not returned. Nor do we think that the auditor erred in giving added weight to this testimony from the fact that one of the defendants was present and heard the plaintiff’s testimony and made no denial of it. It is reasonable to presume that the defendant who was present at the hearing knew whether they received and used the scythes charged to them. The presence of a party in court, with evidence which he can but does not use to controvert the evidence given by the other party, is a circumstance which the trier has a right to consider in determining whether the fact is as the other party’s testimony tends to show. We also think that the fact that scythes were sent to the address of the defendants at Chateaugay, New York, and that a portion of the same were returned, had a legal tendency to show that the defendants resided at the time of their receipt and return, at Chateaugay, New York. So, also, the fact that the defendant present testified in his own behalf to the law of New York in regard to the time in which by the laws of that state actions of this kind must be brought, to avoid the Statute of Limitations, would, to an ingenuous mind, tend to show that the defendants resided in New York when the cause of action accrued. It can hardly be conceived what bearing they thought the laws of New York in that particular could have upon the case if they did not then and now reside in that state. Such evidence introduced and given by the defendants, and accompanied by no statement of where they reside now, was at least an indirect admission that they considered that such proof might be for their benefit, and hence an indirect admission that their residence during the time the Statute of Limitations would run on the plaintiff’s claim was in New York.Hence we conclude there was evidence before the auditor which legally tended to establish all the facts found by him. Of its sufficiency, the auditor was the sole judge, and having passed his judgment, we cannot revise it. As the auditor has been somewhat sharply criticised for finding the facts he has from the evidence before him, we may be pardoned for saying, that it is diffi [326] cult for us to understand .how he could have arrived at .any other conclusions of fact from the evidence and circumstances, than those he did arrive at. II. The defendants further insist that to avoid the bar of the Statute of Limitations, it was incumbent upon the plaintiff to establish, not only that the defendants resided in New York when the cause of action accrued, but, also, that they continued to reside there a sufficient length of time to remove the statute bar implied from more than six years having elapsed since the cause of action accrued, and, also, that the defendants during that period had no known property in this state When the residence of the defendants in New York is once established, it js presumed to continue there till the contrary is shown; and the burden is cast upon the defendants to show a change of residence. Nixon v. Palmer, 10 Barb. 175. So, also, the defendants having been shown by the plaintiff to be non-residents of the state, so that the Statute of Limitations would not run against his claim, the burden was cast upon the defendants to show they had known property within the state of such a. character as would defeat the force of the fact of their non-residence on the operation of the Statute of Limitations. Mazozon v. Foot, 1 Aik. 282 ; Sill v. Bellows, 15 Vt. 727. These are the only points on which the defendants rely to reverse the judgment of the County Court. We find no error in the action of the County Court on these points, and judgment is affirmed.