Antonio Bonazzi v. Leroy F. fortney

• Citation: 110 A. 439,94 Vt. 263
• Parties: ANTONIO BONAZZI v. LEROY F. FORTNEY
• Decision Date: 11 May 1920
• Court: Vermont Supreme Court

110 A. 439

94 Vt. 263

ANTONIO BONAZZI v. LEROY F. FORTNEY

Supreme Court of Vermont

May 11, 1920

November Term, 1919.

ACTION OF TORT for malicious prosecution. Plea, the general issue. Trial by jury at the March Term, 1918, Washington County Waterman, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Fred L. Laird and Edward H. Deavitt for the plaintiff.

Joseph Frattini and John W. Gordon for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

This is an action for malicious prosecution. The material facts are these, in substance:

In 1915 the defendant and one Bartlett brought an action against the plaintiff for fraud and deceit. The declaration contained four counts.

In one it was alleged, in substance, that on June 10, 1914, the defendant therein applied to the plaintiffs therein to sign as sureties for him and one Ferdinando Bonazzi, a promissory note for $ 1,847, payable to the First National Bank of Montpelier and signed "F. Bonazzi & Son, " in the handwriting of the defendant, and then told them that he and Ferdinando were partners doing business under the firm name of F. Bonazzi & Son, and that the note was the obligation of that firm, and that to induce them to sign such note he then and there falsely and fraudulently represented to them, and each of them, that the firm of F. Bonazzi & Son was then solvent, and that it had on hand a large number of profitable orders, and also that a person who was then out of the State would help them take care of the note when it fell due.

The other counts were based on false representations alleged to have been made to induce plaintiffs to sign a note of like amount dated November 9, 1914. The allegations in the latter counts respecting the representations as to the partnership, the solvency of the firm, and the amount of profitable orders on hand were the same, in substance, as the allegations in the first count mentioned. Then followed an allegation that the defendant falsely and fraudulently represented that the firm then had two granite jobs in process of construction from which it would realize about $ 800, and that it would receive its pay for them before the November note came due, and that this money would be applied on that note.

It was alleged in each count that the representations alleged therein to be false and fraudulent were so in fact; that this was known to the defendant and unknown to the plaintiffs; that they signed the two notes relying solely upon those representations, and that they were obliged to pay them and thereby suffer the full loss of same, except the sum of $ 489.50, which was realized on a mortgage held by Bartlett.

That writ was served by arresting the defendant's body. The case was entered in Washington county court June 30, 1915, and was discontinued at the March term 1917, Bartlett having died in the meantime.

On the trial of the instant case there was a sharp conflict in the evidence on the questions whether the plaintiff was a member of F. Bonazzi & Son, or so represented himself to Bartlett and this defendant, and whether he made the several false and fraudulent representations alleged in the declaration in the original suit; the plaintiff's evidence tending to show the negative of each of these questions, while the defendant's evidence tended to show the affirmative.

The defendant also introduced evidence to show that in bringing that suit he and Bartlett acted under the advice of competent counsel. F. Bonazzi & Son were engaged in the granite business.

The plaintiff was postmaster at Plainfield from April 1, 1914, until after the trial below. On the trial defendant was called as a witness by plaintiff and asked if he did not try to get plaintiff removed from that office. He said "No." He was then asked if he wrote the Post Office Department, and he said he would answer "Yes," if he could tell the reason. He was then asked: "And you stated that, didn't you * * *." The examiner was interrupted by an objection, whereupon the court said: "The way that question is put, unlimited as to time, date, or anything of that kind it is not admissible." The examiner did not change the question, and it was excluded, subject to the plaintiff's exception. It is now claimed that it was proper to show the defendant's animus toward the plaintiff. True, but the letter is not before us, and the record does not disclose harmful error.

Exceptions briefed by plaintiff as Nos. 2 and 3 to the admission of evidence relate to remarks made by defendant's counsel in the cross-examination of the plaintiff. Both remarks were withdrawn and no exception was allowed to either so they are not before us.

The plaintiff introduced in evidence a return filed with the commissioner of taxes by Ferdinando December 5, 1914, wherein he made oath that he began doing business in this State August 16, 1907, under the name of F. Bonazzi & Son. This was the first attempt by any one on behalf of F. Bonazzi & Son to comply with the requirements of No. 117, Acts of 1908. The plaintiff then offered to show by a clerk of the commissioner of taxes that this return was made because the commissioner insisted upon it. This was excluded, and the plaintiff had an exception. Later the plaintiff offered to show substantially the same facts by Ferdinando, to meet any claim that might be made by the defendant that this return was filed, just before Ferdinando went into bankruptcy, for the purpose of showing that the plaintiff was not a member of F. Bonazzi & Son, and therefore not liable for debts owed by that party. This was excluded, subject to the plaintiff's exception.

This return was sworn to December 4, 1914, and the day following Ferdinando filed his petition as a voluntary bankrupt.

It is not apparent upon what ground the return was admissible. It was a declaration made long after the right of action of Bartlett & Fortney, if they had one, accrued, by a person not a party to the litigation, and who, the plaintiff claimed, never was his partner.

The declarations of one partner are not admissible to establish a partnership as against another who denies it. Bundy v. Bruce et al., 61 Vt. 619, 17 A. 796. In Teller v. Patten., 61 U.S. 125, 20 HOW 125, 15 L.Ed. 831, where the question was whether one of the defendants was a partner with the others, his declarations that he was not, made to third persons, when the plaintiff was not present, were held inadmissible. Marks v. Hardy, 117 Ky. 663, 78 S.W. 864, 1105, 4 Ann. Cas. 814; Bowie v. Maddox, 29 Ga. 285, 74 A. D. 61; Chambers v. Grout, 63 Iowa 342, 19 N.W. 209.

But the return was admitted without objection, and the question is whether the court erred in refusing to allow the plaintiff to show why it was made at that time. Regarding the admissibility of this return as we do, and the fact that it was introduced by the plaintiff, we think it would have been going far afield to have received the offered evidence. It was properly excluded.

In cross-examination of Mr. Martin, a witness called by the defendant, counsel insisted that he was entitled to ask a certain question because it appeared that the witness was hostile to his client. The court said: "I don't see, myself, how that can be so; he has been very fair, frank, and open about his statements apparently." Plaintiff claims that this remark constituted error, but we think, in effect, it was no more than a finding by the court that the witness was not hostile, as claimed; a question raised by the plaintiff, and necessary to be determined before the examination proceeded.

The June 10th note was given to take up a note then due. Defendant testified, in substance, that before he signed the June 10th note the plaintiff told him that, if he would sign it, it never would come up against him; that he had a friend in Montpelier, who was in New York at the time, who had promised to take care of the note then due, and that he...