Active Market, Inc. v. Leighton

Citation200 A. 822,124 Conn. 500
CourtSupreme Court of Connecticut
Decision Date12 July 1938
PartiesACTIVE MARKET, Inc., v. LEIGHTON et al.
200 A. 822
124 Conn. 500

ACTIVE MARKET, Inc.,
v.
LEIGHTON et al.

Supreme Court of Errors of Connecticut.

July 12, 1938.


Appeal from Superior Court, Fairfield County; John R. Booth, Judge.

Action by the Active Market, Incorporated against Hugh C. Leighton, Sr., Hugh G. Leighton, Jr., and another to recover the price of goods sold and delivered. The case was tried to the court. Judgment for plaintiff, and named defendants appeal.

No error.

Argued before MALTBIE, C. J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

C. Driscoll Grimes, of Greenwich, for appellants. John R. Cuneo and Frederick Lovejoy, Jr., both of South Norwalk, for appellee.

200 A. 823

HINMAN, Judge.

&gt

The writ named as defendants Hugh C. Leighton, Sr., and Hugh G. Leighton, Jr., both of Darien, Connecticut, and the Leighton Baking and Restaurant Corporation, a New York corporation. The complaint was the common counts, and the bill of particulars set forth the items of goods (meats) alleged to have been sold and delivered to the defendants. The individual defendants pleaded a general denial; the corporation was defaulted for failure to plead. After trial of the case the court entered judgment for the plaintiff against all of the defendants. In response to a motion by the defendants Leighton the trial court filed a special finding of facts upon which the judgment was predicated. This embodied facts as to the situation and relations of the defendants and their transactions with the plaintiff, more fully stated in the finding on appeal hereinafter summarized, from which the court reached and stated conclusions that each of the three defendants acted as principal and as agent for the other two and that, therefore, a partnership existed between them.

The first contention of the appealing defendants is that the complaint is not sufficient to support the judgment because it contains no allegation of partnership or of operative facts constituting a partnership. So far as concerns the failure to expressly name and designate the defendants as partners or allege the existence of a partnership between them, a decisive answer is afforded by Hotchkiss v. De Vita, 103 Conn. 436, 446, 130 A. 668. Here, as in that case, the defendants were all in court, they were apprised that all were claimed to be liable, and what the controversy was about and, so far as appears, they were, or at least should have been "as well prepared to make any proper defense as if it had been in terms alleged that they were...

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