Dante v. Quilietti., 1698.

• Decision Date: 28 February 1945
• Docket Number: No. 1698.,1698.
• Citation: 41 A.2d 306
• Parties: DANTE v. QUILIETTI.
• Court: Rhode Island Supreme Court

41 A.2d 306

DANTE

v.QUILIETTI.

No. 1698.

Supreme Court of Rhode Island.

Feb. 28, 1945.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Bill in equity by Peter Dante against Guiseppe Quilietti, administrator, for the cancellation of a mortgage. From an adverse decree, the complainant appeals.

Appeal denied and dismissed, decree affirmed, and cause remanded.

Henry E. Crowe and Thomas Hetherington, both of Pawtucket, for complainant.

Woolley, Blais & Quinn and John F. Quinn, all of Pawtucket, for respondent.

CAPOTOSTO, Justice.

This is a bill in equity for the cancellation of a mortgage. The bill contains no specific prayer for an accounting, but it does pray for general relief. At the conclusion of a hearing on the merits, the trial justice, in a decision from the bench, first denied and dismissed the bill in its entirety; and then, upon the request of counsel for the complainant that certain credits be allowed under the prayer for general relief, he amended his decision to that extent and entered a final decree in accordance with the amended decision. The cause is before us on complainant's appeal from that decree.

Adolfo Quilietti, respondent's brother, died intestate on February 16, 1943. He never married. Complainant's wife was their sister. She died February 23, 1929. It was agreed by the parties that administration was properly granted on Adolfo's estate, which, including the mortgage in dispute, amounts to $17,500; and that this estate is to be divided into five distributive shares, one of which shares goes to complainant's two children.

The complainant and his daughter Elsie are the only witnesses in this cause. The respondent did not testify, as his counsel explained to the court that, other than finding the mortgage and note among Adolfo's papers, he knew nothing about the matter in controversy.

In view of complainant's main contention that the trial justice misconceived the evidence in this cause, we deem it necessary to review the testimony in some detail. Complainant testified that he sent Adolfo money to come to America from Italy about 1903; and that, with the exception of two short visits to the old country, one about 1906, when Adolfo went there to get his brother Guiseppe, and the other about 1936 for pleasure, he had always lived with the complainant. Sometime during this period Adolfo became the owner of the City Line Market, which complainant had to pass in going to Providence from his home on Columbus avenue in Pawtucket.

The mortgage involved in this cause is dated June 16, 1924. It was in the sum of $2,800, with interest at 2%, and covers the premises occupied by complainant's family. Complainant testified that although Adolfo did not want or expect any interest on this loan, the lawyer who drew the mortgage deemed it advisable to mention some rate of interest and therefore fixed it at 2%; and that after the original transaction was carried out he, the complainant, did not in any way concern himself further about the mortgage, as his wife took care of all his financial matters until her death. She never told him what arrangement she had with Adolfo as to board and lodging, or what payments, if any, she made on the mortgage; nor did he at any time ask her any questions respecting the mortgage, excepting as follows: Two weeks before she died, he spoke to her about Adolfo's mortgage and she then merely told him not to worry about it and that the only thing he had to worry about was the ‘big house’. We note here that a Pawtucket bank held a mortgage on a larger house of the complainant.

In the family readjustment that followed the death of complainant's wife, his eighteen year old daughter, Elsie, became the ‘housekeeper’. Complainant testified that between 1929 and 1930 he asked Adolfo several times what was owing on the mortgage and that, even though he told Adolfo that he was thinking of substituting a bank mortgage for it, the only answer complainant received was that they would discuss the matter ‘bye and bye’. According to his testimony, he also told Adolfo that some arrangement had to be made about the latter's board and lodging but he ‘couldn't get anything out of him.’ In this situation, he told Adolfo that his daughter would have more time to talk to him. He therefore left all matters to be adjusted by Elsie and gave them no further personal attention from that time until the death of Adolfo, when he first became aware that the mortgage had been paid in full by payments which had been made by his wife before 1929 and by credits agreed to by Adolfo under alleged agreements with Elsie, when complainant was not present, in 1929 and 1936. He admitted that he knew the terms of these agreements and was permitted to relate them in detail. We will presently refer to these agreements in connection with Elsie's testimony.

In the course of his testimony, complainant introduced in evidence an ordinary school composition blankbook which admittedly belonged to Adolfo and in which he apparently kept certain records of his financial affairs. Complainant testified that he had seen this book once in the lifetime of his wife, when Adolfo was marking therein a payment on the mortgage which she had just made. The next time he saw it was shortly after Adolfo's funeral. At that time, according to him, an unidentified relative was looking through some of Adolfo's papers and, finding this book, threw it into a wastebasket, from which it was recovered.

With the exception of numerals, all entries in this book are in Italian. The entries that were translated for the record before us show five payments on the mortgage, as follows: May 31, $400; November 24, $200; December 5, $200; May 9, 1927, $300; and July 3, 1927, $200. Each of these entries, which appear in the book in the order and form just mentioned, is followed by the signature of the deceased. The payments thus acknowledged amount to $1,300.

The testimony of complainant's daughter Elsie covers the period from February, 1929, to the death of Adolfo in 1943. She testified that when, in the absence of her father, she asked Adolfo what payments her mother had made on the mortgage, he produced the above-mentioned book and ‘showed me how much. * * * But I didn't get a chance to read it. He closed the book up right away.’ She then asked him: ‘Did my mother pay any more before she died?’ and his answer was $300 that he did not put in the book. (Italics ours.) Her testimony on this point, taken as a whole, is to the effect that, except for the $300 just mentioned, she never knew how much her mother had paid on the mortgage until Adolfo's book was fortuitously recovered by her father in the manner hereinbefore described.

Elsie further testified that in February or March of 1929 she agreed with Adolfo that thereafter he was to pay for his board, lodging and laundry at the rate of $40 a month, $20 to be paid in cash and $20 to be applied as monthly credits on the principal of the mortgage; that this agreement continued in force and payments were regularly made thereunder on the first of each month until 1936, when Adolfo decided to take his meals with his brother Guiseppe, the respondent here, who was married and lived nearby; that a new agreement was then made under which Adolfo thereafter was to pay $5 a month in cash and credit $15 on the mortgage; that payments on this basis were duly made on the first of each month until he died in 1943; that she kept no records of any kind in reference to either of these agreements; and that she at no time, while the agreements were in force, asked Adolfo what was the balance on the mortgage. As far as the testimony shows, Adolfo's book contained no entries respecting these agreements.

We need to refer to a few other matters for a comprehensive view of the circumstances in this cause. It appears in evidence that from June, 1924, when the mortgage was executed, to Adolfo's death in 1943, no interest was paid or demanded on the mortgage and that apparently no such payment is recorded in Adolfo's book; also, that during this entire period Adolfo was in the grocery business and ran the City Line Market hereinbefore mentioned; that while complainant's wife was living she traded with him, he bringing the food home in his delivery truck; and that after her death the complainant, although he had no automobile and Adolfo was living in his home, traded either at local stores, or, passing by Adolfo's market, went to Providence for provisions.

The...