Elkin v. McGeorge

• Decision Date: 10 November 1925
• Court: Connecticut Supreme Court
• Parties: ELKIN v. MCGEORGE ET AL.

130 A. 898

103 Conn. 486

ELKIN v. MCGEORGE ET AL.

Supreme Court of Errors of Connecticut.

November 10, 1925

Appeal from Superior Court, Middlesex County; Arthur F. Ells, Judge.

Action by Michael Elkin against Howard D. McGeorge and another. From a judgment for plaintiff, defendants appeal. No error.

Leonard O. Ryan, of Middletown, for appellant Mame R McGeorge.

Jacob Schwolsky, of Hartford, for appellee.

HAINES, J.

The issues in this case rest upon a general denial of the allegations of a substituted complaint wherein the plaintiff sets up his claim in four alternative counts. In the first count it is alleged that the defendants agreed to pay the plaintiff 5 per cent. upon the selling price of the property for his services as broker in the sale of the defendants' real estate for $25,000; in the second, that the plaintiff rendered such services, and that the defendants agreed to pay him therefor what such services were reasonably worth; in the third, that the defendants employed the plaintiff as a broker to procure a purchaser, and agreed to pay therefor $1,250 and, in the fourth, that the defendants employed the plaintiff to procure a purchaser for the real estate, and that such services were reasonably worth $1,250. The court upon these issues makes a general finding for the plaintiff, and reaches the conclusion that the defendants made a valid and enforceable contract of sale of the property, known as Mt. Tom Camp in Moodus in this state with Leo Rogers and Alfred Chase, for $25,000; that the plaintiff was the effective procuring cause of the sale, and on that date, May 4, 1923, had earned and became entitled to a 5 per cent. commission of $1,250, with interest from that date and costs.

The appellants, by motion filed January 13, 1925, asked for a correction of the finding, and by another motion filed on the same date sought to have all the evidence and rulings certified and printed as part of the record on appeal, which latter motion was granted, and all the evidence given at the trial is thus brought before this court. The motion for correction of the finding, save in two unimportant particulars, was denied.

The record shows that the motion to correct the finding and the motion to certify the evidence were both filed the same day, which suggests that the appellants were seeking to base their appeal upon the provisions of General Statutes, § 5832; Pr. Bk., p. 99. The end sought could have been fully accomplished by the adoption of the method of appeal provided by General Statutes, § § 5829-5831; Pr. Bk. pp. 96-99. Though the evidence in this case is not voluminous, counsel should bear in mind that the printing of all the evidence on appeal is expensive, and should not be done, unless it is necessary to have the whole or a substantial part of it before this court for the consideration of the corrections desired. Hartford-Connecticut Trust Co. v. Cambell, 97 Conn. 251, 253, 116 A. 186.

The motion to correct was filed 35 days after the trial court had filed its decision, and it does not appear that any written motion for the extension of the period fixed by the statute had been made to the judge. This was irregular, and the judge could have properly refused to certify the evidence. It was, however, within his power for good cause to waive the appellants' noncompliance with the rule, and, by certifying the evidence on the appellants' motion therefor, extend the time by implication, and this was done. Root v. Lathrop, 81 Conn. 169, 170, 70 A. 614.

There are three reasons of appeal, all relating to the findings of the trial court. The first asks that the...