Arnold v. Kutinsky, Adler & Co.

• Decision Date: 14 April 1908
• Citation: 80 Conn. 549,69 A. 350
• Court: Connecticut Supreme Court
• Parties: ARNOLD v. KUTINSKY, ADLER & CO.

69 A. 350

80 Conn. 549

ARNOLD

v. KUTINSKY, ADLER & CO.

Supreme Court of Errors of Connecticut.

April 14, 1908.

Appeal from Superior Court, Litchfield County.

Action by Fred M. Arnold against Kutinsky, Adler & Co. Judgment for defendant on demurrer, and plaintiff appeals, claiming error apparent on the face of the record. Reversed and remanded.

This appeal is taken simply for error apparent on the lace of the record. The portions of the judgment record claimed as showing error are, in substance, as follows: The action was returnable to the superior court on the first Tuesday of September, 1906. On October 2, 1906, the plaintiff filed a substitute complaint as follows: (1) On October 4, 1905, the defendants, Kutinsky, Adler & Co., and Luther M. Case, formed a partnership, under a written agreement, to buy, sell, and deal in tobacco of the Massachusetts and Connecticut crops of 1905, of which agreement a copy is herewith filed, marked "Exhibit A." (2) On February 13, 1906, the plaintiff sold and delivered to the defendant Case, for and on account of said partnership, a large quantity of tobacco of the Massachusetts crop of 1905, viz., more than 10 tons, at the agreed price of 18 cents per pound. (3) The defendants thereby became indebted to the plaintiff in the sum of $4,000. (4) Said sum has not been paid. The plaintiff claims $5,000 damages. This complaint was de murred to as defective in substance, because the liability of the defendants is based on the terms of Exhibit A; and it appears by these terms that the defendants did not form a partnership, as alleged in the complaint, and on March 15, 1907, the demurrer was sustained on that ground. On May 3, 1907, the plaintiff filed an amended complaint as follows: "(1) On October 4, 1905, the defendants entered into a written agreement to buy, sell, and deal in tobacco of the Massachusetts and Connecticut crops of 1905, of which agreement a copy is herewith filed, marked 'Exhibit A.' (2) On——, 1906, the plaintiff sold and de livered to the defendants a large quantity of tobacco of the Massachusetts crop of 1905, viz. * * * (3) The defendants thereby became indebted to the plaintiff in the sum of $5,500. (4) Said sum has not been paid. The plaintiff claims $6,000 damages." (Exhibit A is the same document as that mentioned in the former complaint.) On June 28, 1907, the court, against the objections of the defendants, allowed this amendment. On November 29, 1907, the defendants Kutinsky, Adler & Co. demurred to this amended complaint, in substance, for the following reasons: (1) The alleged liability of the defendants is based upon the terms of Exhibit A. (2) It appears by said terms that the agreement, Exhibit A, does not create a partnership between the defendants in the purchase of tobacco from third persons. (3) The allegations of the complaint do not state with necessary certainty the cause of action sought to be alleged. On February 11, 1908, the court sustained this demurrer to the amended complaint. On February 18, 1908, upon motion of the defendants, and also by the stipulation of the parties, the court rendered judgment for the defendants to recover their costs, and on the same day the plaintiff perfected this appeal. The errors assigned as appearing on the face of the judgment record are: (1) Error in sustaining the demurrer to the amended complaint. (2) In sustaining the demurrer to the substitute complaint.

Theodore M. Maltbie and Samuel A. Herman, for appellant. William F. Henney and Hugh M. Alcorn, for appellees.

HAMERSLEY, J. (after stating the facts as above). Paragraphs 2, 3, and 4 of the amended complaint are sufficient in substance to state a good cause of action. The trial court, therefore, erred in sustaining the demurrer to this complaint. The fact that the defendants entered into an agreement between themselves, as alleged in paragraph 1, is wholly unconnected with any other...