Adamowicz v. Stevens

• Decision Date: 28 February 1969
• Docket Number: No. CV,CV
• Citation: 6 Conn.Cir.Ct. 112,267 A.2d 678
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Stanley J. ADAMOWICZ v. Michael STEVENS et al. 15-666-7686.

Page 678

267 A.2d 678

6 Conn.Cir.Ct. 112

Stanley J. ADAMOWICZ v. Michael STEVENS et al.

No. CV 15-666-7686.

Circuit Court of Connecticut, Appellate Division.

Argued Jan. 20, 1969.

Decided Feb. 28, 1969.

John F. Walsh, New Britain, for appellant-appellee (plaintiff).

Alan I. Scheer, Meriden, for appellee-appellant (defendant D'Agostino).

DiCENZO, Judge.

The plaintiff brought this action in two counts. The first count alleged fraud in the sale and delivery of carpeting, and the second count alleged a breach of contract in the refusal to pay for the carpeting. Since no motions were made to correct the finding, the assignments of error alleging that certain facts were improperly found cannot be considered, and the court's conclusions must be tested by its finding. Practice Book § 981; Fellenbaum v. Markowski, 4 Conn.Cir.Ct. 363, 365, 232 A.2d 515.

The court found the issues for the defendants on the first count and for the plaintiff on the second count on the following finding of facts and conclusions. The defendant D'Agostino was the owner and operator of a motel in Meriden. On May 10, 1966, the defendants visited the plaintiff's place of business to purchase carpeting and supplies for D'Agostino's motel. The carpeting was to be installed by the defendant Stevens. The order was made out to Stevens for an agreed price of $2103.54, to be paid cash on delivery to the motel. The price and terms of sale were negotiated by Stevens. The order form made out to Stevens provided for a 1 percent per month finance charge together with reasonable attorney's fees and court costs. This order form was signed by Stevens. The following day, the plaintiff's employee delivered the carpeting and other supplies to the motel; he had instructions to deliver them only on payment in cash. On his arrival at the motel, only D'Agostino was present. The plaintiff's employee refused to leave the carpeting without payment. Thereafter, D'Agostino talked to the plaintiff on the telephone and stated that he did not have the check available but expected to get to the bank that day and would mail the plaintiff the check in payment. On the basis of D'Agostino's promise, the plaintiff instructed his employee to make delivery of the materials and supplies. Later in the day, the plaintiff went to the motel and requested payment from D'Agostino. At this time D'Agostino told the plaintiff that he had already paid Stevens. On May 12, 1966, the plaintiff's employees returned to the motel for the purpose of picking up the carpeting and materials, which had not yet been used, but were prevented from doing so under threat of arrest by D'Agostino. D'Agostino had the carpeting installed by someone other than Stevens and has never paid the sum of $2103.54 to the plaintiff. The court concluded that the plaintiff failed to prove his allegations of fraud in the first count and accordingly found for the defendants on that count. The court further concluded that D'Agostino obligated himself to pay and became liable when he promised the plaintiff a check in payment if delivery was made, and that a new and binding agreement obligated D'Agostino to pay for the carpeting and materials. The court also concluded that D'Agostino was not liable for the 1 percent per month finance charge and reasonable attorney's fees because D'Agostino did not agree to pay these items. Accordingly, the court entered judgment for the plaintiff in the sum of $2103.54, with interest at 6 percent per annum in the sum of $220.87.

The plaintiff assigns error in that the court failed to find fraud on the first count, to find for the plaintiff on the recovery of finance charges of 1 percent per month and reasonable attorney's fees on the second count, and to find punitive damages, including attorney's fees, on the first count. We consider these assignments in the order stated.

In an action for fraud and deceit, it is essential 'that the representation was made as a statement of fact; that it was untrue, and known to be untrue by the party making it; that it was made for the purpose of inducing the other party to act upon it; and that the party to whom the representation was made was in fact induced thereby to act to his injury. All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery.' Bradley v. Oviatt, 86 Conn. 63, 67, 84 A.2d 321, 322; Helming v. Kashak, 122 Conn. 641, 642, 191 A. 525. Fraud is not to be presumed, but must be strictly proven; the evidence must be clear, precise and unequivocal. Burley v. Davis, 132 Conn. 631, 634, 46 A.2d 417. To create the basis for an action in misrepresentation which will be sufficient to strike down a contract, there must be a definite, conscious intent not to pay. Morrill v. Blackman, 42 Conn. 324, 327. 'The intention of the promisor not to perform cannot be established by proof of nonperformance only. * * *' Flaherty v. Schettino, 136 Conn. 222, 226, 70 A.2d 151, 153. Although the court made no specific finding on the elements of fraud, the finding does not disclose any subordinate fact which would justify a conclusion that the plaintiff was not to receive payment, or that at the time D'Agostino made his statement he knew that the plaintiff would not receive a check in payment. Nowhere in the finding is there a subordinate fact that would justify a conclusion that D'Agostino had no intention to pay....