Scott v. Scott

• Citation: 83 Conn. 634,78 A. 314
• Court: Connecticut Supreme Court
• Decision Date: 16 December 1910
• Parties: SCOTT v. SCOTT.

78 A. 314

83 Conn. 634

SCOTT

v. SCOTT.

Supreme Court of Errors of Connecticut.

Dec. 16, 1910.

Appeal from Superior Court, New Haven County; Milton A. Shumway and Howard J. Curtis, Judges.

Action for money loaned by Carrie F. Scott against Herman A. Scott. A demurrer to the second defense was sustained, and judgment was rendered for plaintiff, and defendant appeals. Affirmed.

David E. Fitz Gerald and Walter J. Walsh, for appellant.

Robert C. Stoddard, for appellee.

RORABACK, J. This is an action brought on the common counts. The bill of particulars contained two items of money loaned to the defendant by the plaintiff, viz., February 29, 1904, $1,300, and July, 1904, $3,000. In compliance with an order of court the plaintiff made her bill of particulars more specific by stating that the $3,000 referred to in the second item of the bill of particulars was money loaned by the plaintiff to the defendant, and was used by the defendant as part of the purchase price for the premises known as 61 Garden street. The first defense was a general denial, and the second defense was adjudged insufficient on demurrer. The parties then went to trial under the general issue, when the court found for the plaintiff and rendered judgment for $1,600. The appeal assigns error in sustaining the demurrer to the second defense, and because the court overruled certain claims of law which the defendant made upon the trial. The defendant's main contention, expressed in several forms in the reasons of appeal, is to the effect that the court erred in not holding that the judgment granting alimony to his wife in the divorce proceedings was a bar to her recovery in the present action.

Going to trial under the general issue after a demurrer to the second defense had been sustained did not waive the right of appeal after final judgment from an interlocutory judgment upon the demurrer. Hunter's Appeal, 71 Conn. 189, 198, 41 Atl. 557. But it does not follow that a reason of appeal of that nature is to be decided without reference to the proceedings following the answer. If these, without the imposition of any new and improper burden upon the defendant result in a judicial finding by which the facts alleged are supported, and their legal effect broadened by other facts not specifically alleged, but within the issue, this court is not to shut its eyes to the finding and consider the demurrer as if it had been the termination of the pleadings. Having, now, all the facts before us, we are not required to rule upon what would be the result of some of them standing alone. Mechanics' Bank v. Woodward, 74 Conn. 689, 691, 51 Atl. 1084.

For the purpose of testing the question as to whether the defendant was injured by the judgment we are therefore to examine the facts set up in the second defense in connection with the other facts found to exist. Thus treated, it thus appears that for some years after their marriage the parties were engaged in the business of pressing and cleaning clothes. This business started on a small scale, but through the industry and application of both husband and wife it became profitable. The profits by agreement between them were divided, and the plaintiff's share at first was deposited in a savings bank in her own name, but subsequently was transferred to their joint account. In May, 1897, they purchased a dwelling house for their own occupancy, and $3,200 of this purchase price was paid in cash drawn from their joint account. The title to this property was taken in the name of the husband contrary to an agreement that it was to be taken in their names as joint owners. This title was so taken without the consent of the wife and contrary to her express direction. Sixteen hundred dollars, one-half of the sum paid on the purchase price for the dwelling house, was the plaintiff's property for which the judgment now in question was rendered. The parties moved into this house and lived there until July, 1905, when they separated. Shortly thereafter an action claiming a divorce, alimony, and a change of the plaintiff's name was instituted. The complaint in that action among other things alleged that the defendant had been guilty of intolerable cruelty, and that the defendant owned real and personal estate of the value of $10,000. A decree was rendered awarding a divorce to the plaintiff from the defendant and allowing her $1,000 alimony, which was paid by the defendant. On the trial of the divorce action the plaintiff introduced evidence and sought to prove the truth of the matter she now alleges in her present complaint and bill of particulars for the purpose of enhancing whatever sums the court might find to be due her under her claim for alimony. The court received said evidence and considered all the conditions and circumstances surrounding and connected with the plaintiffs present claim as set forth in her complaint and bill of particulars for the purpose of ascertaining what was fairly and reasonably due to the plaintiff as alimony.

Is this a case of estoppel by judgment? The law in respect to such estoppel was fully considered and determined by the court in the case of Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195. It was there decided that when the second suit is upon the same cause of action, and between...