309 A.2d 522 (Conn.Cir.A.D. 1973), CV 15-656-6165, Piascik v. Stone, Inc.

Docket Nº:CV 15-656-6165.
Citation:309 A.2d 522, 6 Conn.Cir.Ct. 699
Opinion Judge:DEARINGTON, Judge.
Party Name:Frank PIASCIK v. STONE, INC.
Attorney:Roger J. Frechette, New Haven, for appellant (defendant). Daniel J. Hagerty, New Britain, for appellee (plaintiff).
Judge Panel:In this opinion JACOBS and KINMONTH, JJ., concurred. DEARINGTON,
Case Date:June 15, 1973
Court:Circuit Court of Connecticut

Page 522

309 A.2d 522 (Conn.Cir.A.D. 1973)

6 Conn.Cir.Ct. 699

Frank PIASCIK

v.

STONE, INC.

No. CV 15-656-6165.

Circuit Court of Connecticut, Appellate Division.

June 15, 1973

Argued March 5, 1973.

Page 523

[6 Conn.Cir.Ct. 700] Roger J. Frechette, New Haven, for appellant (defendant).

Daniel J. Hagerty, New Britain, for appellee (plaintiff).

DEARINGTON, Judge.

The plaintiff alleged in his complaint as follows: He entered into an agreement with the defendant to purchase a home and thereupon paid the defendant $1500 as a deposit. The defendant represented that occupancy would be ready on or Before September 23, 1963. Later, on September 20, the plaintiff agreed to take occupancy if the home would be ready in four or five days; however, the home was not completed at any time prior to October, 1963. The plaintiff seeks return of the deposit.

The defendant admitted the original agreement, the receipt of a $1300 deposit and the fact that the plaintiff had requested a return of the deposit. The remaining allegations were denied. By way of a counterclaim the defendant sought damages for the neglect or refusal of the plaintiff to purchase the property according to the agreement.

The court rendered judgment for the plaintiff and the defendant has appealed, assigning error in both the finding and the conclusions, in the overruling of certain claims of law, in rulings on evidence, and in the judgment for the plaintiff in that the complaint referred to an express contract, whereas no evidence was introduced to support such a contract and the parol evidence rule prohibited reception of evidence supporting an oral contract.

[6 Conn.Cir.Ct. 701] We first review the assignment of error directed to the finding. The defendant claims that the court erred in not finding some fifty-seven paragraphs, each set forth in its draft finding. The record is barren of any motion to correct the finding. It is obvious that the error assigned here cannot be reviewed, since the court was afforded no opportunity to correct its finding if, indeed, the finding required correction. Practice Book § 981;

Page 524

Chem-Tronix Laboratories, Inc. v. Solocast Co., 5 Conn.Cir. 533, 534, 258 A.2d 110; State v. Caponigro, 4 Conn.Cir. 603, 614, 238 A.2d 434. 'A finding unattacked is presumed to contain all relevant facts, and if the finding fails to state all the material facts, the . . . (appellate) court must nevertheless decide the case upon the basis of those which do appear.' Maltbie, Conn.App.Proc. § 130.

The defendant further assigns error in the finding, claiming that the court recited certain facts when such facts were unsupported by the evidence. Again, the finding was not challenged by a motion to correct, as already discussed, and we cannot review this assignment of error.

The finding, which cannot be disturbed for reasons already considered, recites the following facts: On June 16, 1963, the plaintiff looked at a model house built by the defendant and on the next day made a deposit of $275 for a lot owned by the defendant. The parties entered into an agreement on June 29 for the erection on lot 48 of a house substantially similar to the model house and signed a contract; a down payment of $1000 was made. At the time of the signing, Elliot Stone, an agent of the defendant, agreed that the date of occupancy would be by September 23, 1963. Ordinarily, such a house can be erected in ninety days. The plaintiff visited the construction site about once a week from the time the footings were poured until September 23. [6 Conn.Cir.Ct. 702] On the latter date, the house was not completed, nor ready for occupancy. Thereafter...

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