Thayer v. Central Vermont Railroad

The opinion of the court was delivered by Tyler, J. This is an action of assumpsit brought to recover for a quantity of wood. Trial by referees under "a rule of court and report made to the June Term, 1885, of the Orange [217] County Court. At the December Term the plaintiff filed a motion to re-commit, claiming that the referees erred in disallowing his charge for 419 cords of wood which he sought to recover, they having found that the wood had been sold by one Luke Tarbell to Daniel Tarbell with the knowledge and consent of the plaintiff, and that Daniel Tarbell had sold the same to the defendant; also claiming that the findings of fact on this point were inconsistent with each other and against the' evidence. The motion was supported by affidavits and by transcripts of the testimony taken at the trial. The court overruled the motion to re-commit, accepted the report and’ rendered judgment thereon for the plaintiff for a less sum than was claimed by him, to which judgment he excepted. The motion to recommit was addressed wholly to the discretion of the court below upon the evidence therewith submitted. No question of law is raised upon the decision of that court, apparent upon the record, which is revisable here. Exceptions to the report, if founded on matter intrinsic, might have raised a question of law, which, if the court below decided erroneously, could have been revised and corrected in this court. If the matter were extrinsic, not appearing on the face of the report, it must have been shown to the court below by proper evidence. Fuller v. Wright, 10 Vt. 512. The County Court exercises a discretionary, unrevisable power, where the case shows the referee had some evidence properly before him to sustain his finding, as the parties, by agreeing to refer the case to him, make him the trier of the facts and leave it to him to determine the weight that should be given to the testimony. The judgment of the County Court on the exceptions is therefore affirmed. At the March Term, 1887, of this court, held in said county, the plaintiff filed his petition for a new trial, which petition was continued into the present term. It is preferred on two grounds : first, that the report is against the evidence adduced at the trial; and second, that since the trial new evidence has been discovered, which would establish the fact that one pile [218] oí wood sold to tbe defendant contained 64 cords instead of 58 cords, as found by the referees. The rule relative to new trials has been clearly defined. When there is any conflict of evidence and any reasonable ground for doubt on the evidence which way the fact is, the finding of the trier of the fact is conclusive. “ If the verdict can be supported upon any rational view of the evidence, it should stand; and it never has been considered a sufficient ground for a new trial that the verdict is merely against a preponderance of the testimony, or that the court from a consideration and examination of the testimony might have arrived at a different result.” Weeks v. Barron, 38 Vt. 420; Hill v. New Haven, 37 Vt. 501; Westmore v. Sheffield, 56 Vt. 239. Having carefully examined the testimony filed in support of this petition, we are unable to find that there was no evidence to support the finding of the referees. The question was litigated before them whether or not Luke Tarbell sold and delivered the 419 cords of wood with the plaintiff’s consent. The testimony of Luke tended to prove the affirmative of this issue. The testimony of Daniel tended to show that at a conversation in the mill-yard between himself, Luke and the plaintiff, it was agreed that he should sell the wood to the defendant, as he had a contract with the defendant and could do better with the wood than they could; that a bill (Exhibit C) was after-wards handed to the plaintiff which apprised him of the fact that the wood had thus been sold by Daniel, who was to repay him for it in wood, and that the plaintiff made no objection thereto. We are unable to say that the finding of the referees on this question was so clearly against the weight of evidence as to warrant a new trial on that ground. The newly discovered evidence is merely cumulative and is not of such a character as would be likely to make any substantial change in the result if a new trial were ordered; besides, no sufficient reason is assigned for its not having been adduced at the trial before the referees. The petition therefore must be dismissed with costs.