Cinque v. Orlando

• Decision Date: 26 January 1954
• Court: Connecticut Supreme Court
• Parties: CINQUE et al. v. ORLANDO et al. Supreme Court of Errors of Connecticut

Page 532

102 A.2d 532

140 Conn. 591

CINQUE et al. v. ORLANDO et al.

Supreme Court of Errors of Connecticut.

Jan. 26, 1954.

Jack B. Talsky, West Haven, Alphonse DiBenedetto, for the appellant (defendant DiBenedetto).

Sidney L. Goldstein, New Haven, for the appellees (plaintiffs).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, QUINLAN and WYNNE, JJ.

WYNNE, Associate Justice.

The plaintiffs brought suit against two defendants to collect a bill for services in grading property belonging to the defendant DiBenedetto. From a judgment rendered against him that defendant has appealed. He makes the claim that the plaintiffs rested their case without having offered testimony of any kind bearing upon his liability for the bill in question. A motion for nonsuit was made in his behalf and was denied. Thereafter the trial proceeded. The other defendant, Orlando, testified in his own behalf, as did the defendant DiBenedetto, who failed to rest his case upon the denial of his motion for nonsuit. The question presented is whether the court below could properly use the testimony of Orlando in entering judgment against DiBenedetto.

The court found the following facts: The plaintiffs conduct a business under the name of Cinque's Construction Company. In the transaction in question it was the plaintiff John Cinque who was acting. DiBenedetto owned a shore cottage at 61 Cosey Beach Avenue, East Haven. Sometime prior to June, 1951, he hired Orlando to repair the roof on the cottage. During the progress of this work DiBenedetto requested Orlando to do some grading on the property, including the filling in of a large excavation, and the latter undertook to do it. He and a helper spent three and a half days doing some of the work in question. For this, Orlando was paid $80 by DiBenedetto. When DiBenedetto found that the work was going too slowly, he asked Orlando to get somebody to do it and said that he would pay for it. Thereafter Orlando made a contact with the plaintiff John Cinque and engaged him to complete the grading job at an agreed price of $120.

The trial court found that DiBenedetto was the undisclosed principal of Orlando. DiBenedetto claims that the court was not warranted in finding the facts upon which the conclusion that Orlando acted as DiBenedetto's agent was based, because evidence to prove those facts was not introduced on the plaintiffs' case but came into evidence only during the presentation of Orlando's case. The answer to this contention is that a court makes its finding on the basis of all the credible evidence before it, irrespective of the source from which that evidence comes. Leitzes v. F. L. Caulkins Auto Co., 123 Conn. 459, 461, 196 A. 145. It is true that if DiBenedetto had rested his case at the close of ...