Dick v. Dick

Decision Date27 August 1974
Citation355 A.2d 110,167 Conn. 210
PartiesSamuel H. DICK v. Jack R. DICK.
CourtConnecticut Supreme Court

Charles G. Albom, New Haven, and Richard A. Bieder, Stamford, with whom on the brief, was Theodore I. Koskoff, Bridgeport, for appellant (plaintiff).

Bourke G. Spellacy, Hartford, with whom were James H. Lloyd III, Hartford, and, on the brief, Stuart N. Updike, Hartford, for appellee (defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ. MacDONALD, Associate Justice.

The plaintiff, Samuel H. Dick, brought this action against his son, the defendant, Jack R. Dick, seeking to enforce an agreement (hereinafter referred to as the agreement) entered into between them on August 6, 1960. The plaintiff sought as relief an order directing the defendant to account for his financial gains during the period extending from August 6, 1960, to the time of the action; an order directing the defendant specifically to perform his part of the contract; damages of $20,000,000; an order declaring the defendant to be a constructive trustee for the plaintiff; an order directing the defendant to convey to the plaintiff one-half of his financial gains for a period subsequent to the action; and costs and such other relief as might be equitable or lawful. The defendant counterclaimed. The court ordered a bifurcated trial in which the issue as to the authenticity of the defendant's signature to the agreement was tried to a jury, the jury finding the issue in favor of the plaintiff. The court ruled that since the remaining issues to be litigated were equitable in nature, the court would hear them without a jury. The court found the issues for the defendant on the complaint and for the plaintiff on the counterclaim, and the plaintiff has appealed from the judgment so rendered.

The plaintiff has assigned as error the refusal of the trial court to find the facts set forth in more than 300 paragraphs of the draft finding, the inclusion in the finding of forty paragraphs alleged either to be contrary to the evidence or in language of doubtful meaning and of sixteen conclusions claimed to be unsupported by subordinate facts and the law, and the overruling of fifty-nine claims of law. He also assigned error in several procedural and evidential rulings of the court, in its failure to draw certain conclusions from the subordinate facts, in the rendition of judgment for the defendant when the conclusions reached by the court do not support that judgment, and in the denial of the plaintiff's 'motion to open judgment.'

The term 'wholesale,' as applied to the plaintiff's attack on the finding, seems grossly inadequate. By whatever term it is denominated, however, it is precisely that type of attack which this court has frequently criticized and, apparently to no avail, attempted to discourage. Such attacks tend to cloud the real issue and in themselves cast doubt on the party's claims. State v. Miselis, 164 Conn. 110, 114, 318 A.2d 102; Branford Sewer Authority v. Williams, 159 Conn. 421, 424, 270 A.2d 546. This is particularly true where, as here, there is conflicting testimony as to many of the corrections sought. Catania v. Conforte, 130 Conn. 178, 181, 32 A.2d 646. Despite the obfuscation necessarily incident to such a method of presenting an appeal, it is apparent that this appeal presents two central issues: (1) whether the trial court erred in taking the case from the jury; and (2) whether there was consideration for the contract.

The finding, which is subject to only minor correction, 1 reveals the following relevant facts: The trial court ordered a bifurcated trial in which the issues as to the authenticity of the defendant's signature to the agreement were tried to the jury. The jury found, through interrogatories, that the defendant had in fact signed the document in question in his New York city apartment on August 6, 1960. The agreement is set out in full in the footnote. 2

The plaintiff, the father of the defendant, was, at the time of trial, seventy-two years old and the defendant, at that time, was forty-three. 3 The plaintiff's wife, Betty Dick, is the defendant's mother. The plaintiff and one Richard Gardner were engaged in business in New Jersey from 1948 to 1959. In 1948, the defendant left Syracuse University to work in the plaintiff's enterprises as a clerk. These enterprises were operated by and emanated from the Modern Block Company and were involved in the manufacture of a variety of articles, including stoves, kitchen cabinets, vanities, sliding doors, sink tops, and wardrobe closets. Some of these enterprises were corporations, others partnerships. The defendant, without putting up any funds, received a one-third interest in every one of the companies which the plaintiff owned, and retained that interest until the termination of the activities of the companies, although he actually received no stock or partnership papers. By 1957, the various enterprises operated by the plaintiff employed from 300 to 400 people. Prior to the defendant's association with the plaintiff, the plaintiff and Gardner were the sole owners of these companies. The plaintiff retired to Florida, but opened a warehouse and worked much of his time there, telephoning frequently to the New Jersey companies to give orders to his partners and employees. All checks to be drawn on all of these enterprises had to be signed by the plaintiff and Gardner, and were mailed to the plaintiff in Florida for his signature. While in Florida the plaintiff learned of one check that Jack Dick had signed without authority.

The plaintiff was engaged in the practice of fictitious billing in 1948, before the defendant joined his businesses. Through this practice the plaintiff borrowed money from banks and other lending institutions at a time when the defendant was merely a clerk in the plaintiff's businesses. The plaintiff engaged in false billings for a number of years thereafter and used two supervising employees to further this practice. Two disinterested witnesses who participated in the plaintiff's financial schemes described in detail the modi operandi of the plaintiff. The practice of false billing continued through all the years that the plaintiff and the defendant were with the companies and resulted in a borrowing of over one million dollars on non-existent inventory as collateral for loans.

The plaintiff and Gardner maintained two sets of records, a correct set and one to record the false pre-billing records. Pre-billing is a practice that helps to obtain money on actual orders before they are filled by borrowing against goods sold before shipment. About seventy to eighty percent is realized on loans on such bills that are factorized. While the plaintiff was in Florida he continued to control his many businesses by constant and long telephone calls and by insisting that all checks and documents be mailed to him. The relationship between the plaintiff and the defendant was very unfriendly.

Cosmo Cassenese, supervisor of loading, traffic manager and supervisor of records for the plaintiff's businesses, admitted signing false bills of lading for non-existent inventory and obeyed all orders of the plaintiff. Cassenese was involved in false billing at the plaintiff's request between 1956 and 1959, the years immediately prior to the bankruptcy of the companies. The plaintiff and Gardner asked Cassenese to furnish the names of carriers to insert in bills of lading even though these carriers were never contacted or used, thereby falsifying the records. The plaintiff and Gardner also ordered Cassenese to make out many false records so that it appeared that products were being held in their warehouse. After signing many false bills of lading Cassenese refused to sign any further documents. A salesman, attempting to find goods he had sold, failed to locate the non-existent merchandise. When a salesman was about to inquire from Cassenese about goods, Cassenese was told by the plaintiff to 'get lost.' Cassenese testified that the goods listed on many bills of lading were not shipped because they were not in existence. After Cassenese refused to become further implicated in the scheme of false billings, a secretary named Agnes Norton made out the false bills of lading, describing cabinets and ovens.

An employee of the plaintiff's companies, one Bernard DeCoufle, who worked eleven years prior to 1959 for the plaintiff manufacturing sliding doors, testified that in 1956 the plaintiff ordered him to build a false pile of plywood which had the appearance of being a solid mass but which actually consisted of a hollow cavern veneered by a very small amount of plywood. DeCoufle did in fact build the false pile of plywood so as to create the impression of an enormous pile which was used by the plaintiff as inventory against which moneys were borrowed. DeCoufle received orders from the plaintiff all the time DeCoufle was with the company, regardless of whether the plaintiff was in Florida or New Jersey.

The false bills of lading involved borrowing of more than a million dollars from at least two lending institutions and the plaintiff's companies, when they could not repay their loans to these lending companies, were declared bankrupt. The plaintiff was in complete charge of the financial end of the business up to the date of bankruptcy and the defendant, who was in charge of sales, was not allowed to handle any financial dealings. The plaintiff and Gardner were constantly in touch with the finance companies and the defendant was excluded from these dealings. The plaintiff and Gardner were paying exceptionally high interest rates for moneys borrowed and the borrowing kept increasing until finance notes were being renewed daily with no payments actually being made on the principal. The plaintiff and Gardner were the only ones who could sign finance notes. The plaintiff returned to New Jersey when his enterprises, with...

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