Cole v. Associated Const. Co.

• Decision Date: 02 March 1954
• Citation: 103 A.2d 529,141 Conn. 49,40 A.L.R.2d 1105
• Parties: , 40 A.L.R.2d 1105 COLE et al. v. ASSOCIATED CONST. CO. et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 529

103 A.2d 529

141 Conn. 49, 40 A.L.R.2d 1105

COLE et al. v. ASSOCIATED CONST. CO. et al.

Supreme Court of Errors of Connecticut.

March 2, 1954.

Milton Krevolin, Hartford, with whom, on the brief, were Cyril Cole and A. Arthur Giddon, Hartford, for appellants (plaintiffs).

Reuben Sudarsky, Hartford, with whom, on the brief, was Alexander A. Goldfarb, Hartford, for appellee (named defendant).

Before INGLIS, C. J., BALDWIN, O'SULLIVAN and WYNNE, JJ., and DALY, Superior Court Judge.

DALY, Superior Court Judge.

The plaintiffs, Mary Cole and Morton E. Cole, brought this action against the named defendant and Angelo J. Giardini and Sydney R. Pomer. In the complaint it is alleged that Giardini is a large stockholder and president of the named defendant, hereinafter called the contractor, and that Pomer is treasurer and also a large stockholder. The contractor filed a plea in abatement in which it was alleged that 'at the commencement of this action, there was and now is another action pending in the Superior Court in and for the County of Hartford between the same parties as the parties to this action and for the same cause as that set forth in said complaint.' This was denied by the plaintiffs, hereinafter called the owners, in their answer. The trial court found the issues for the contractor, and it was adjudged that the action abate and be dismissed as against it. In their assignment of errors the owners claim that the court erred in failing to make a special finding of facts, as requested by them, until after the time to appeal had expired. They also claim that the court erred in refusing to grant their motion for an extension of time to file and perfect their appeal. Upon argument, however, these claims were abandoned. The principal question is whether the court erred in sustaining the plea in abatement.

In the assignment of errors it is claimed that the court erred in refusing to find material facts set forth in the draft finding and in finding certain facts set forth in the finding. None of the changes sought would directly affect the ultimate facts upon which the judgment depends. No useful purpose would, therefore, be served by correcting the finding. Beach v. First National Bank, 107 Conn. 1, 4, 138 A. 905.

The finding sets forth the following facts: On July 25, 1952, the contractor brought an action against Morton E. Cole, individually and as trustee, Cyril Cole, individually and as trustee, and Mary Cole. It was returned in September, 1952, to the Superior Court in Hartford County, is still pending and is herein referred to as the first action. The contractor claimed foreclosure of a mechanic's lien and $25,000 damages under a contract for the construction of a new dwelling in the town of West Hartford for the defendants in that action. On March 18, 1853, Morton E. Cole, individually, and Mary Cole filed a counterclaim against the contractor alleging fraudulent inducement to enter into and breach of, the contract, and false representations, negligence and waste in the performance of the contract by the contractor. No attachment or garnishment was requested or made under the counterclaim which has never been withdrawn and is still pending. The writ in the second, the present, action was dated on the day on which the counterclaim was filed. Service was commenced on March 20, 1953, and the action was returned to the Superior Court in Hartford County in April, 1953.

The plaintiffs in the second action are the same persons as those who filed the counterclaim in the first action. The contractor, one of the defendants in the second action, is the same corporation as the one which brought the first action, in which the counterclaim was filed. Giardini and Pomer, alleged to be the president and the treasurer, respectively, of the contractor, have been joined with it as defendants in the second action. The construction contract dated June 1, 1951, referred to in the counterclaim, is the same contract as that referred to in the complaint in the second action. In the second action the complaint alleges a conspiracy by the defendants, the contractor and its officers, Giardini and Pomer, to defraud the plaintiffs, Morton E. Cole and Mary Cole, in respect to the contract and its performance, fraudulent inducement to enter into, and breach of, the contract by the contractor, and false representations, negligence and waste in the performance of the contract by the contractor. Garnishments in the second action were made upon the funds of the contractor in various banks in Hartford in the amount of $60,000; no attachment or garnishment was made upon the funds or properties of the codefendants Giardini and Pomer. Upon an application of the contractor made on March 24, 1953, to a judge of the Superior Court to reduce the garnishments, on the ground that they were excessive, oppressive, vexatious and abusive of process, the judge found that they were excessive by $55,000 and reduced them to $5000. On April 8, 1953, the contractor filed the plea in abatement to the second action.

The trial court concluded that the counterclaim in the first action and the complaint in the second action involve the common parties, the owners and the contractor; that, as between these common parties, the cause of action alleged in the counterclaim in the first action and that alleged in the complaint in the second action are the same; that, as to the contractor, the second action is abatable; and that neither the fact that Giardini and Pomer are defendants in the second action nor the use of the word 'conspiracy' in various allegations of the complaint in it affected the abatement of it so far as the common party, the contractor, is concerned. The owners concede that the allegations of their counterclaim in the first action set forth a...