All the reasons following the sixth are founded upon errors alleged to have been made by the trial court in finding or refusing to find certain facts upon conflicting evidence, and in the degree of credit to be given to witnesses. Under such circumstances the finding as made must remain unchanged. Atwater v. Morning News Co.,67 Conn. 504; Thresher v. Dyer, 69 id. 404; Hygeia DistilledWater Co. v. Hygeia Ice Co., 70 id. 516.
The seventh reason of appeal is this: "The court erred in finding, upon the evidence certified and on file, that the plaintiff told Perrin that there was a mistake about the note; that it was agreed that it should be with interest and wanted him to change it, as stated in paragraph 11 of the finding." And the eighth reason is this: "The court erred, upon the evidence certified and on file, in finding as stated in the following words at the end of paragraph 12: `But said Perrin did not know that fact and understood they had agreed to the change.'"
These two reasons of appeal are based on the claim that these facts are found without any supporting testimony, and may be considered in connection with the first, second and third reasons as well as with the fourth, fifth and sixth. *Page 164
These reasons differ little more than that each presents a different aspect of the same thing, and they all depend upon the answer to one question: Did the trial court err in finding that Mr. Perrin understood that the maker and the indorser of the note had agreed that the words which he wrote in the note should be in it? It appears that Mr. Perrin did write the words "with interest" in the note after it was signed and indorsed. Granting that these words made a material change, such as to render the note invalid unless the maker and indorser had consented that they should be in it, yet if Mr. Perrin wrote in the words upon the understanding that the maker and indorser had agreed that those words should be in it, and was made so to understand by the plaintiff, then Mr. Perrin did nothing of which the plaintiff could rightfully complain at the time, nor did he do anything for which the plaintiff can now recover damages from his estate. The finding is distinct that Mr. Perrin did act upon this understanding, and so the question is presented directly: Is their any testimony supporting the finding of facts as set forth in the 11th and 12th paragraphs? A summary of the evidence sufficient to reproduce the interview between the plaintiff and Mr. Perrin at which the words were written in, will show.
Sometime prior to the time of the interview (July 15th, 1889), the plaintiff had bought a tract of Texas land from one George C. Bailey, and had paid him therefor. Somewhat later (April 29th, 1891) Mr. Bailey bought back the land from the plaintiff and was to return to him the same sum of money which the plaintiff had paid, with interest thereon from the time of that payment. The plaintiff had agreed to accept in payment his, Mr. Bailey's, note payable a year from date, to be indorsed by Mrs. Ripley, and Mrs. Ripley had agreed to indorse such a note. This agreement made it necessary that the note should be so written that at its payment the plaintiff would receive back his money with interest thereon up to the time the note was paid. The plaintiff had employed Mr. Perrin to prepare a deed of the land from him to Mr. Bailey, and to prepare a note to be signed by Mr. Bailey *Page 165 and indorsed by Mrs. Ripley. The sum for which the note was to be made payable was not put in; the space was left blank; the sum was to be computed by the plaintiff and Mr. Bailey and then was to be written in by one of them. The plaintiff took the deed and the blank note from Mr. Perrin's office, and a day or two thereafter met Mr. Bailey, when the note was filled out, signed and indorsed. The plaintiff delivered the deed to Mr. Bailey and received the note.
The plaintiff and Mr. Bailey, in filling out the blank in the note, by mistake computed the interest only to the date of the note and wrote in that amount; and as there were no words in the note indicating that it was to bear interest, it did not carry out the agreement which the parties had made. The note so written did not pay the plaintiff for his land as much as Mr. Bailey and Mrs. Ripley had agreed that he should be paid. The plaintiff discovered this mistake in the note very soon, and a day or two later came again to the office of Mr. Perrin bringing the note. He showed it to Mr. Perrin, called his attention to the fact that by mistake the interest was computed only to the date of the note, mentioned that by the agreement there was another year's interest due, and wanted that amount added to the note. Mr. Perrin was sitting at his desk with his pen in his hand. He had been writing. He knew from his previous talks with the plaintiff about the business, what the agreement was in respect to the interest which the plaintiff had made with Mr. Bailey and Mrs. Ripley, and to carry out the wish of the plaintiff he wrote in the note as it lay before him on his desk, the words "with interest," as already stated. The plaintiff saw Mr. Perrin write these words in the note. He then took it from the desk and asked Mr. Perrin if that was right. Perrin replied, "Yes, that is all right." The plaintiff took away the note and kept it until its maturity.
This evidence certainly indicates that the thought then in the mind of the plaintiff, and upon which Mr. Perrin acted, was not to change a completed note but to complete the note; to make that note to be exactly what the parties had agreed that it should be. This evidence also indicates that Mr. Perrin *Page 166 did no more than what he understood, and had reasonable ground for believing, the parties had agreed to; and makes it certain that the court did not reach the conclusions stated in its finding without any evidence.
Certain of the errors assigned are in the refusal of rulings upon abstract propositions of law: as that the plaintiff was not presumed to know that the alteration of the note would avoid it as respects the indorser. The ground of appeal as respects each is not that the claim of law was overruled, but simply that no ruling at all was made upon it.
Where a finding of fact is based upon or necessarily determined by a presumption or conclusion of law, it is the right of the losing party to have this presumption or conclusion so stated in the finding as to enable him to seek a review by appeal. But there is nothing in the record of this cause to indicate that the trial court had any occasion to rule upon the questions which the appellant now seeks to raise.
If the plaintiff authorized or assented to the alteration made by the defendant's intestate, it would be, of itself, an immaterial circumstance whether he understood its legal consequences or not. That could only be important as a factor in determining whether he did thus assent, and it does not appear that the court below found it necessary to pass upon it, in coming to its decision. If this was so, the burden of seeing that the record disclosed the fact was upon the appellant.
There is no error.
In this opinion the other judges concurred.