Antonio Pepe Co., Inc. v. Apuzzo

• Decision Date: 18 April 1923
• Citation: 120 A. 681,98 Conn. 807
• Court: Connecticut Supreme Court
• Parties: ANTONIO PEPE CO., INC., v. APUZZO ET AL.

120 A. 681

98 Conn. 807

ANTONIO PEPE CO., INC., v. APUZZO ET AL.

Supreme Court of Errors of Connecticut.

April 18, 1923

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by the Antonio Pepe Company, Incorporated, against Salvatore Apuzzo and others to recover damages for a conspiracy to steal from the plaintiff. Judgment for plaintiff, and appeal by defendant Salvatore Apuzzo. No error.

The complaint in its first paragraph alleges as follows:

(1) On or about August 4, 1921, the defendants, combining and conspiring together to cheat and defraud the plaintiff did entice, employ, and persuade certain other parties to break and enter the plaintiff's place of business in New Haven, and carry away therefrom a large quantity of goods, the property of the plaintiff.

(2) It also alleges in succeeding paragraphs that pursuant to such conspiracy the defendants with agents and accomplices broke into plaintiff's place of business and stole merchandise of the value of $3,788.66, and disposed of the same to their profit and advantage.

The trial court found that the unlawful taking charged in the complaint took place as alleged, and that the stolen property was removed to a small shack in the woods in East Haven, Conn., and proceeded to find the following paragraphs:

(3) The robbery was the result of a conspiracy to rob the plaintiff, in which conspiracy Antonio Nuzzo, Clem Piscitelli, Victor E. Smith, one Ralph from Springfield, whose last name is unknown, Louis Gennero Mike Miolene, Giro Apuzzo, and Salvatore Apuzzo, took part.

(4) The defendant Salvatore Apuzzo was on August 4, 1921 engaged in the wholesale and retail tobacco business, at No. 192 Wallace street, in New Haven, and his brother, the defendant Giro Apuzzo, previous to the robbery, at the time of, and for some time subsequent thereto, occupied part of the same building as a dwelling.

(5) The house of Giro Apuzzo and the store of Salvatore Apuzzo were the places where the aforesaid conspirators met and where the plans were laid.

(6) Under the terms of the conspiracy, Salvatore Apuzzo was to receive the stolen property, and he actually did receive a portion of it which was on August 4, 1921, removed from the shack in East Haven in a truck owned by Salvatore Apuzzo and driven by his brother-in-law who was in his employ.

(7) Goods belonging to the plaintiff of the value of $857.50 were recovered by the police on or about August 8 1921, from the shack in East Haven, where they had been taken on the night of the robbery. Plaintiff's goods of the value of $321.96 were also recovered in Derby at about the same time, where they had been shipped following police inquiries at the store of said Salvatore Apuzzo.

The court rendered judgment against both of the defendants Giro Apuzzo and Salvatore Apuzzo to recover $2,729.19 and costs. Only the latter defendant appealed.

Further facts appear in the opinion.

George W. Crawford, of New Haven, for appellant.

Philip Pond and Raymond E. Baldwin, both of New Haven, for appellee.

KEELER, J. (after stating the facts as above).

At the outset the appellant attacks the judgment of the court on the ground that there was a total failure to prove the cause of action alleged in the complaint, in that the complaint sets up a conspiracy to cheat and defraud the plaintiff, while the trial court found a conspiracy to rob, based on the facts found by it as appears in the preceding statement of facts. Counsel contends that the meaning of the words " cheat and defraud" is established in law as applied to inducing a person to part with the possession of property by reason of intentionally false representations relied and acted upon by such person to his harm. Such is undoubtedly the usual meaning of these words, and there is nothing in the facts found by the court to indicate that any persons combined to cheat and defraud the plaintiff in the way just indicated. The first paragraph of the complaint as quoted in the statement of facts was put in issue in the trial of the case by a general denial, and after the trial the court found all the issues in favor of the plaintiff as appears by the judgment file. The facts set forth in the finding entirely justify the finding on the issues made by the court, and particularly those arising out of the allegations of the first paragraph of said finding, reasonably construed. The words " cheat and defraud" are evidently intended to characterize in a general way the nefarious intent of the defendants and as merely introductory to the primary allegation of a conspiracy to cause the breaking into of the plaintiff's place of business and the taking of goods therefrom. As the words stand, they would not constitute a proper allegation of fraud or deceit. These words can be rejected as surplusage, and there will still remain a good allegation of an actionable wrong. It is evident that the case was tried upon this assumption, as in the third paragraph of the finding the court says, " The robbery was the result of a conspiracy to rob the plaintiff," which here evidently means the theft and transportation of plaintiff's goods, as the transaction carried out was not the criminal offense of robbery, but as a crime constituted statutory burglary. The question of a variance was not raised at the trial, nor afterward by a motion in arrest; nor is it specifically assigned as a reason of appeal in this court. Even though the question were properly before us, we regard the variance as immaterial and cured by the general finding of the issues for the plaintiff.

Desiring to present for review certain rulings of the trial court upon questions of evidence, defendant's counsel in the trial court submitted a draft finding in which the rulings presented for review...