Booths v. Armstrong

• Decision Date: 30 July 1907
• Citation: 67 A. 484,80 Conn. 218
• Court: Connecticut Supreme Court
• Parties: BOOTHS v. ARMSTRONG.

67 A. 484

80 Conn. 218

BOOTHS

v. ARMSTRONG.

Supreme Court of Errors of Connecticut.

July 30, 1907.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Isaac J. Boothe against Sherman Armstrong. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

On September 21, 1898, Isaac J. Boothe was the owner of a manufacturing plant for making fish reels, which plant, with the good will of the business, he desired to sell. Sherman Armstrong was desirous of investigating the business of making fish reels, and, if he found it satisfactory, of purchasing the same. On that day Boothe and Armstrong executed a written contract, by which Armstrong might carry on with Boothe's plant the business of making reels during the season of 1898 and 1899, and at his option might purchase said plant and business at any time before April 1, 1899. This agreement, in so far as it affects the questions presented by the appeal, is in substance an agreement that Armstrong shall have the use of Boothe's plant, rent free, and shall have the contract for making the fishing reels wanted by Boothe during the season of 1898 and 1899 at the prices specified in the schedule attached to the agreement, and that Boothe shall furnish Armstrong such materials as he may need for the construction of the reels ordered by Boothe, which materials are to be charged to Armstrong at the cost prices and are to be owned by Boothe until paid for by Armstrong. Shortly after the execution of the contract Armstrong commenced to make fish reels in Boothe's plant, and continued such manufacture until May 29, 1899, and during this period Boothe delivered material for Armstrong's use in making said reels. Prior to April 1, 1899, Armstrong notified Boothe that he should not purchase the business, and in the following May Boothe sold it to another party. From November, 1898, to May, 1899, Boothe at Armstrong's request loaned Armstrong from time to time money to enable him to continue his work under the contract. It was expected that these loans would be repaid by work done in making reels and otherwise under the contract. The transaction under the contract was completed before July 1, 1899, and in the following January, Boothe, as plaintiff, commenced this action against Armstrong, as defendant. The complaint alleged a loan by the defendant to the plaintiff of $1,000, and the bill of particulars specified the items of loan as above mentioned. The defendant included in his answer a counterclaim stating a cause of action against the plaintiff for goods sold and services rendered, and alleging the execution of the contract above mentioned, which is made a part of the answer, and that under and pursuant to its terms the defendant delivered goods and rendered services in the manufacture of the goods described in said contract, and that the plaintiff has not paid the defendant for the same. This counterclaim was pleaded as a second and third defense by way of set-off. The plaintiff's reply denies the allegation of indebtedness as stated in the counterclaim, and denies the allegation that the plaintiff has not paid the sums alleged to be due defendant.

Upon this state of the pleadings the cause was referred to a committee and partially heard, when on July 14, 1902, the plaintiff died. On February 5, 1903, a stipulation in the cause was filed by Mary W. Boothe, executrix of the plaintiff, and the defendant, by which the action was revived and continued between said Mary W. Boothe, executrix, and said Armstrong, and by which it was agreed that the case should be proceeded with before the committee and the facts found by the committee who had been appointed and who had partially heard the same. On July 6, 1903, the following paper was filed with the clerk of the court: "Isaac J. Boothe (Mary W. Boothe, Executrix) v. Sherman Armstrong. New Haven County Superior Court. July 6, 1903. Withdrawal of Action. The above-entitled action is hereby withdrawn. Williams & Harriman, Attorneys for Plaintiff." Thereupon, on September 3d, the defendant filed a motion asking (for the reasons stated, including the statement of the defendant's answer and counterclaim) that the case be restored to the docket. To this motion the plaintiff, claiming to appear specially for the purpose of objecting to the jurisdiction of the court, demurred on the ground that the court has no jurisdiction to hear and determine the motion. On November 27, 1903, the cause was reserved for the advice of this court as to what judgment should be rendered. This court advised the superior court to overrule the demurrer to the motion. The following minute appears upon the docket: "Case restored to the docket in accordance with the advice of the Supreme Court of Errors March 18 [1904]." On May 4, 1904, the plaintiff filed in court a written motion "that the entire case be restored to the docket." Upon this paper was indorsed the following: "The within motion to restore case to docket is granted. June 24, 1904. R. Wheeler, J." Thereupon the parties appeared before the committee and completed the hearing before him upon the issues settled by the pleadings as they stood at the time the attempt to withdraw the action was made. Upon the committee's report various proceedings were had, which resulted in the filing of a "substituted report" on March 6, 1907. In this report the committee found that the amount loaned by the plaintiff to defendant, as alleged in the complaint, was $3,775, which was $670 in excess of the indebtedness of the plaintiff to the defendant as proved, and therefore found that on July 1, 1899, the defendant was indebted to the plaintiff in the sum of $670, and that the plaintiff is entitled to recover that sum, with interest. It also appears from the findings in the report that, at the price named in the contract for fish reels made in pursuance thereof, the contract price for finished reels made and delivered by the defendant in pursuance of the contract (together with $402, value of work in connection therewith) amounted to $3,355.15; that the value of material, stock, and unfinished parts of reels on hand and delivered by defendant to plaintiff upon completion of the transactions under the contract amounted to $2,977.50; that these two last-mentioned items amounted to $6,332.65; that the cost price of the material furnished by the plaintiff and used by the defendant for the construction of the reels amounted to $3,227.65; and that the amount due from the plaintiff to the defendant upon the defendant's cause of action as stated in the counterclaim and proved upon the hearing was $3,105 (being the difference between $6,332.65 and $3,227.65).

On March 13, 1907, the defendant filed a written motion that judgment be rendered in his favor for $6,332.65, stating therein as the claimed grounds for his motion (1) that it...