Davis v. Maislen

• Citation: 165 A. 451,116 Conn. 375
• Court: Supreme Court of Connecticut
• Decision Date: 21 March 1933
• Parties: DAVIS v. MAISLEN et al.

165 A. 451

116 Conn. 375

DAVIS v. MAISLEN et al.

Supreme Court of Errors of Connecticut.

March 21, 1933

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Action by Clarence C. Davis against Max Maislen and others for damages for defrauding and for conspiracy to defraud, and tried to the court. Judgment for the plaintiff against defendants Maislen, Hoffson, and Kupperstein and in favor of the defendant Maison Company, and appeal by the three defendants first named.

No error.

Isaac Nassau and Louis Nassau, both of Hartford (Francis P Rohrmayer, of Hartford, on the brief), for appellants.

Joseph Solomon and Moses A. Berman, both of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, AND AVERY JJ.

HAINES, Justice.

The finding is that the defendants Maislen, Kupperstein, and Hoffson were all real estate dealers, and Kupperstein was also a builder, and all were experienced in real estate and mortgage matters and often operated together in real estate deals, and were frequently together at the office of Maislen. The plaintiff had been employed for many years by Maislen Hoffson, and the Maison Company, and had full confidence in Maislen, and was easily influenced by him in financial matters. Maislen and Hoffson were brothers-in-law, and the son of Kupperstein was the son-in-law of Maislen, while Hoffson and his wife were two of the three directors of the Maison Company. Maislen at times represented and acted for this company.

In 1917, Maislen transferred property known as 30-32 Martin street, Hartford, to the plaintiff, subject to a first mortgage of $3,000 held by a bank, and took from plaintiff a second or purchase-money mortgage for $5,000, and this mortgage was paid in installments from time to time by the plaintiff and fully paid before December, 1928. After the final payment and in the same month, Hoffson took a transfer of the same property from the plaintiff subject to the first mortgage of $3,000, and gave the plaintiff a second mortgage on the property for $2,700. In March, 1929, Hoffson transferred the property to Harry White subject to both mortgages. In July, 1929, Maislen induced the plaintiff to foreclose the second mortgage against White, and thus plaintiff obtained absolute title again in November, 1929. The next day Hoffson took a transfer of the property from the plaintiff and gave the latter a second mortgage of $2,200. One week later Hoffson transferred the property to Kupperstein at a stated price of $11,700, which was known by the defendants to be far in excess of its value, and took back a third mortgage from Kupperstein for $6,500. Thus the property stood in the name of Kupperstein with a first mortgage for $3,000, a second mortgage for $2,200, and a third for $6,500. Two days later Maislen called the plaintiff to his office and told him that Kupperstein wished to pay the $2,200 second mortgage, and these three then went together to the office of a notary public, and the plaintiff signed a release for the $2,200 mortgage and accepted therefor two of Kupperstein's checks, one for $500 and another for $1,700, after being informed by Maislen that Kupperstein had plenty of money to meet the checks and was the owner of the Parcel Post Building in Hartford, neither of which statements was true. During November and December, 1929, and January, 1930, Kupperstein never had a balance of more than $716 in his account on which the $500 check was drawn, and the personal account showed a balance in November and December, 1929, of less than 30 cents. The finding is that Kupperstein did not intend to pay the $1,700 check.

Before taking title to the property from Hoffson, Kupperstein claimed to have advised with Maislen. This transfer on a false valuation of $11,700 and the giving back of a third mortgage from Kupperstein to Hoffson for $6,500 is found to have been a part of the plan to defraud the plaintiff and enable the defendants to later bring this into the position of a second mortgage. The plan was further prosecuted by fraudulently procuring a release of the plaintiff's mortgage and the giving of Kupperstein's worthless check for $1,700 as part consideration, and thus making the $6,500 mortgage held by Hoffson a valid second mortgage. When arranging for this release by the plaintiff, Maislen, Hoffson, and Kupperstein Knew that the plaintiff was to leave for Chicago the following day. Plaintiff went to Chicago and remained until May, 1930. When the check for $1,600 was returned as worthless, the plaintiff's son consulted with Maislen, who told him that, in order to protect the plaintiff, he would procure a mortgage from Kupperstein of equal protection as that which he had released, and both Maislen and Kupperstein went with the plaintiff's son to the notary's office where a third mortgage to the plaintiff for $2,200 on the same property was executed by Kupperstein in return for the check of $1,700 which was then delivered to Maislen and Kupperstein. Maislen, Hoffson, and Kupperstein fraudulently advised the son to accept this mortgage, and he was inexperienced in such matters and believed he was getting as good security for his father as he had previously had. The same day Maislen took the plaintiff's son to the town clerk's office to record this third mortgage. Soon afterward Hoffson transferred the property to a man named Hurwitz, but the latter did not assume the mortgages. Some time afterward Hurwitz assigned the $6,500 mortgage, now a second mortgage, to the Maison Company, and about three months later this company brought a foreclosure and the third mortgage held by the plaintiff was foreclosed out. After this foreclosure, the plaintiff, who still relied on Maislen, was advised by the latter that, in order to make him secure, he would have Hurwitz transfer to him another piece of real estate in Hartford, which was occupied by colored tenants, though Maislen knew there was no equity in that property. The plaintiff was to keep title to this property until he was able from the rents to obtain the money due him and then transfer the property back to Hurwitz. The plaintiff retained title a few months under this arrangement, but was required to expend $200 for upkeep, and was able to collect only $75 in rent. The plaintiff was financially unable to keep the property and so lost it. The trial court found he was no fully aware of the fraud and conspiracy involved in the foregoing transactions by the defendants until shortly before this action was brought, and at no time did he waive his right to claim damages therefor.

Errors are assigned in finding certain facts claimed to be without evidence to support them. In a " waiver" of some of their claims of error, printed at the end of the record, the appellants state that certain excepts of evidence which appear in part 2 of the finding are " all the evidence necessary" for us to determine these questions. That evidence is only that which was objected to upon the trial, and is inserted in the finding to enable us to pass upon its admissibility.

In determining whether a subordinate fact is found without evidence, the evidence must be " separately designated as an exhibit" and consist of either the entire evidence or such excerpts as are thought by either party or the trial court to be material to the question, and this must be certified by the official stenographer and then " shall be certified by the court, printed and become a part of the record." Rules for Appellate Procedure, § 8. When this appears in the record, it will be " taken as embracing all the material evidence adduced at the trial as to the points in question, unless the contrary appears from the record, it being presumed that the judge performed his duty and that there was no other evidence deemed by him to be material." Hangh v. Kirsch, 105 Conn. 429, 432 135 A. 568, 569. We would not be justified in rejecting the trial court's finding of a subordinate fact upon a mere reference to certain evidence in the record, printed for an...