di Fonzo v. Notarianni, 7961.
| Decision Date | 12 July 1938 |
| Docket Number | No. 7961.,7961. |
| Citation | 200 A. 774 |
| Parties | DI FONZO v. NOTARIANNI et al. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; G. Frederick Frost, Judge.
Action in assumpsit by Maria Palma Di Fonzo against Frank Notarianni and another, as guarantors. Verdict for plaintiff, whereupon a new trial was granted, and plaintiff and defendant Antonio Saccoccio bring exceptions.
Defendant's exception sustained, and plaintiff's exceptions overruled.
Benjamin Cianciarulo and Arabian, Gonnella & Barad, all of Providence, for plaintiff. George Ajootian and Henry R. Di Mascolo, both of Providence, for defendants.
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This is an action in assumpsit to recover from the defendants, Antonio Saccoccio and Frank Notarianni, as alleged guarantors, the amount of an indebtedness acknowledged by the principal debtors. In the superior court the death of the defendant Frank Notarianni was suggested and the administrator of his estate was duly made a party defendant. The trial of the case resulted in a verdict by the jury in favor of the plaintiff in the full amount of the debt plus interest; and thereafter the trial justice granted the defendants' motion for a new trial. The case is before us upon the bills of exceptions prosecuted by the plaintiff and the defendant Saccoccio, respectively, to various rulings of the trial justice. No exception was prosecuted by the above-mentioned administrator and further reference to the defendant shall mean Saccoccio, unless otherwise stated.
The plaintiff expressly waives all of her exceptions except the first, to the ruling of the trial justice granting the defendant's motion for a new trial, and the second, to the ruling of the trial justice sustaining the defendant's demurrer to the amended first count of the plaintiff's declaration. The defendant's bill contains five exceptions, but we need consider only the fourth, to the ruling of the trial justice refusing to grant the defendant's motion for a directed verdict, because that is determinative of the entire case if we find his contention thereunder to be sound.
It appears in evidence that the plaintiff first brought an action in assumpsit against Pasquale Notarianni and Maria G. Notarianni, the principal debtors, and Frank Notarianni and Antonio Saccoccio, the so-called guarantors. At that trial a verdict was directed for the plaintiff against the principal debtors, who took no exception thereto, and a nonsuit of the plaintiff was granted as to the defendants Saccoccio and Frank Notarianni, to which ruling the plaintiff duly excepted. In overruling this exception, this court in its opinion of December 11, 1931, said: "It is clear that said persons did not intend to become primarily liable, and it is unnecessary to consider whether, by writing their names under the word 'guarantors,' they guaranteed payment of the sum mentioned in the instrument." Palma v. Notarianni, 52 R.I. 61, 157 A. 422, 423.
Thereafter on December 14, 1931, the plaintiff commenced this action against the defendants Saccoccio and Frank Notarianni, on the basis of their alleged written agreement to guarantee the payment of the indebtedness of the principal debtors. This agreement allegedly appears upon a paper written entirely in the Italian language, and is the same one which was relied upon by this plaintiff in the case of Palma v. Notarianni, supra. In that case, however, the form and translation of the instrument in question, as apparently then agreed upon, does not conform to the form and translation as agreed upon in the instant case. The following translation thereof follows substantially the form of the original writing, which is also in evidence:
The plaintiff contends that the two defendants by signing this writing under the word garanti—admittedly translated as guarantors—entered into a contract of so-called "absolute guaranty" to pay the entire debt of the principals to the plaintiff, and that there was adequate consideration for such a collateral agreement. The defendant contends substantially that the word garanti was not written upon the instrument when he and Frank Notarianni signed it; that there was no intention on their part to make and no consideration for the alleged agreement; and that, in any event, there is no legal evidence to establish the contract of so-called "absolute guaranty" by the two defendants; and that there is no evidence to support a finding that the plaintiff exercised due diligence in pursuing the principal debtors before bringing action against the alleged guarantors, assuming that there was evidence tending to show a conditional guaranty.
We are of the opinion that the plaintiff's contention cannot be sustained upon the evidence. Whatever the instrument or obligation may be termed, the facts in evidence...
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