Daly Bros., Inc. v. Spallone

• Decision Date: 26 January 1932
• Citation: 158 A. 237,114 Conn. 236
• Court: Connecticut Supreme Court
• Parties: DALY BROS., Inc., v. SPALLONE et al.

158 A. 237

114 Conn. 236

DALY BROS., Inc., v. SPALLONE et al.

Supreme Court of Errors of Connecticut.

January 26, 1932

Appeal from Court of Common Pleas, New Haven County; Miles F McNiff, Deputy Judge.

Action in two counts by Daly Bros., Inc., against Giovanni Spallone and another, brought to the court of common pleas for the district of Waterbury, and tried to the jury. Verdict and judgment for the defendants on the first count; and for the plaintiff, against the defendant Giovanni Spallone, on the second count; and appeal by the plaintiff.

No error.

Albert W. Hummel, of Waterbury, for appellant.

George J. Crocicchia, of Waterbury, for appellees.

AVERY J.

The complaint in this action is in two counts. In the first count, the plaintiff seeks to set aside a conveyance dated November 25, 1929, from the defendant Giovanni Spallone, to his mother, Angiolina Spallone, on the ground that the same was in fraud of creditors. In the second count, the plaintiff sought to recover judgment against the defendant Giovanni Spallone for plumbing and heating supplies furnished. The case was tried to the jury, who brought in a verdict in favor of the plaintiff and against the defendant Giovanni Spallone on the second count for $1,340.93, and in favor of both defendants on the first count. From the judgment rendered in favor of the defendants on the first count, the plaintiff appealed, and assigns as error: First, the action of the trial court in refusing to set aside the verdict in favor of the defendants on the first count; second certain parts of the charge to the jury which are claimed to have been erroneous; and, third, certain paragraphs of the finding which it asks to be corrected. We will deal with these assignments in that order.

It was undisputed at the trial between the parties that for a considerable period prior to February 19, 1926, and up to November 25, 1929, the plaintiff was engaged in selling at wholesale plumbing and heating materials in the city of Waterbury. During this period, the defendant Giovanni Spallone was engaged in the plumbing and heating business in that city. Beginning in a small way, prior to 1926, the defendant purchased from the plaintiff materials and supplies, having an account not exceeding the approximate sum of $200. Thereafter his account became larger; and by November 25, 1929, he was owing to the plaintiff the sum of $1,340.93. On that date he conveyed by quitclaim deed his half interest in certain property in Waterbury owned by himself and his mother to the latter, Angiolina Spallone, who is the other defendant. The plaintiff claims that, at the time of this conveyance, Giovanni was insolvent, and that the conveyance was made to his mother without consideration for the purpose of defrauding his creditors, and particularly the plaintiff. With the verdict were submitted to the jury some eight interrogatories, of which they answered six. Without setting out the interrogatories, which were carefully drawn and the answers to which dispose of the material issues in the case, it is important to note that the jury found in answer to the interrogatories that Angiolina Spallone gave Giovanni a valuable consideration for the conveyance in question, that he did not intend, by making the conveyance to avoid any debt or duty to others and particularly to the plaintiff, and that the conveyance was not fraudulent. The jury found that Giovanni Spallone was not insolvent at the date of the conveyance, that the latter did not cause him to become insolvent, and that the insolvency did not continue to the time of the institution of the present action. To these latter findings of the jury, it is unnecessary to give particular concern, because, if the other findings (that the conveyance was not fraudulent and given for a valuable consideration, and with no intent to avoid any debt) are supported by the evidence, the action of the trial court in refusing to set aside the verdict was correct. From the evidence submitted, the jury might reasonably have found that the property in question was bought by money entirely furnished by Angiolina Spallone and title thereto taken in the name of herself and her son, Giovanni, on November 8, 1919; that the purchase price of the property was $9,050; that there were two mortgages thereon, a first mortgage of $4,500, a second of $2,700, and that the balance of the purchase price was paid, $1,000 in cash, and the remainder by the giving back of a third mortgage for $925; that from the time of the purchase until Giovanni's half interest was deeded back to his mother on November 25, 1929, she paid the interest on the prior mortgages, taxes, and water bills out of her own funds; that during this entire period Giovanni occupied the tenement on the second floor, and the total amount paid by him towards the expenses of the property did not exceed $500; and that Giovanni was indebted to his mother for bills paid upon the property and payments of interest and principal of the mortgage thereon much in excess of the amount which he had paid to his mother. At the time of the conveyance, he was indebted to his father, Domenic, in the sum of $1,300, evidenced by a promissory note which had been assigned by Domenic to Angiolina, and this note was surrendered by her to Giovanni as part of the consideration for the conveyance. The value of his interest at the time of the transfer was $1,200; the incumbrances on the property at that time were in excess of $6,000. The jury might reasonably have found further from the evidence that, at the time of the conveyance of his interest to his mother by Giovanni. She did not know the details of his business affairs, and did not know that he was then indebted, or, if so, in what amount. The evidence before the jury was sufficient to justify their finding that...