49 Vt. 319 | Vt. | 1877
The opinion of the court was delivered by’
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,
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.