Erwin M. Jennings Co., Inc. v. Di Genova

• Decision Date: 04 May 1928
• Citation: 107 Conn. 491,141 A. 866
• Court: Connecticut Supreme Court
• Parties: ERWIN M. JENNINGS CO., INC., v. DI GENOVA.

141 A. 866

107 Conn. 491

ERWIN M. JENNINGS CO., INC., v. DI GENOVA.

Supreme Court of Errors of Connecticut.

May 4, 1928

Appeal from Court of Common Pleas, Fairfield County; Frederick W Huxford, Judge.

Action of replevin by the Erwin M. Jennings Company, Incorporated against Carmine Di Genova, to recover possession of an automobile and for damages. Verdict and judgment for the defendant to recover possession of the automobile and $1 damages, and plaintiff appeals. Error, and new trial ordered.

Philip Reich and Samuel Reich, both of Bridgeport, for appellant.

Hugh J. Lavery, of Bridgeport, for appellee.

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

WHEELER, C.J.

The complaint alleges that plaintiff was on September 13, 1926 and ever since has been the owner of a Hudson automobile of the value of $300, and lawfully entitled to its immediate possession from which defendant wrongfully detains the plaintiff. The plaintiff claims possession of the automobile and $300 damages. The answer is a general denial and a counterclaim that the defendant at the time specified in the complaint was and still is the owner of, and entitled to the immediate possession of, the automobile; that the defendant purchased it on a partial payment plan and on September 13, 1926, tendered plaintiff and its agents the amount due it and requested the agents to inform defendant as to the charges or costs due it in addition to the $35 due on the purchase price; that plaintiff has refused to accept this sum of $35 and has removed the automobile from the possession of defendant and deprived her of the use thereof from the date of replevy; that plaintiff has demanded of defendant the return of the automobile and $75, plus attorney's and sheriff's fees; that this demand is usurious and is made under threat of depriving defendant of the automobile unless defendant pays this demand, which is not in equity and good conscience due, but is an attempt to exact a penalty. Defendant claims under her counterclaim a return of the automobile and $250 damages.

Plaintiff answered the counterclaim by a general denial, except that it admitted that defendant purchased the automobile on a partial payment plan, and for a second defense alleged that defendant purchased the automobile under a conditional bill of sale by the terms of which upon default of defendant in the payments the plaintiff should be entitled to retake the automobile; that defendant made such default and plaintiff replevied it in accordance with the conditional bill of sale; and that at no time prior to the replevying of the automobile did defendant tender plaintiff the balance due. The defendant denied in her reply all the allegations of plaintiff's second defense.

The jury rendered its verdict that defendant recover possession of the automobile and recover $1 damages, and judgment was entered in accordance with the verdict and that defendant recover her costs. Judgment for costs should not have been rendered in favor of defendant without deducting therefrom the reasonable expenses provided for in General Statutes, § 5638, since defendant had untruly pleaded denial of facts without reasonable cause. General Statutes, § 5638; section 199, Rules under Practice Act (Practice Book 1922, p. 290).

The reasons of appeal are confined to the denying of plaintiff's motion to set aside the verdict and to certain rulings on evidence. The facts alleged in the complaint are not disputed in the evidence, except that the date of the replevy was September 17th instead of September 13th. The defendant offered evidence to prove that plaintiff placed in a deputy sheriff's hands a writ of replevin for this automobile on September 17, 1926, when $34.13 was due plaintiff from defendant, and that on this day the sheriff agreed with defendant's attorney that the writ would not be served by him until defendant's attorney could communicate with plaintiff's attorney. The attorneys thereupon agreed that the balance due, together with the expenses and costs of the action, would be paid by the defendant in full settlement, and that the service of the writ would be held in abeyance until September 20, 1926. After this arrangement had been entered into and before September 20th, the sheriff took possession of the car despite the agreement. On September 20th the attorneys agreed that the sum payable under the agreement of September 17, 1926, was $60, and defendant agreed to send a check for this, and did send plaintiff's attorney a check for $60 on September 28th, which he returned and demanded $118 in settlement. Defendant has always been ready and willing to carry out this agreement. Defendant claimed she was on September 17th in rightful possession of the automobile and the owner thereof.

The plaintiff offered evidence tending to prove that defendant's attorney had telephoned its attorney on a Saturday afternoon and he agreed he would telephone plaintiff and get the amount plaintiff claimed was due and let him know but as he could not get his client he did not telephone. On Monday the 20th, he got the figures and gave them to him, $118, made up of $75 for plaintiff, $25 for attorney's fees, and $18 for sheriff's fees. Subsequently plaintiff's attorney received a check for $60, which sum had never been mentioned between them, and after consulting his client he returned the check. Plaintiff's attorney testified that on the day defendant's attorney first called him on the telephone the automobile had been replevied and the sheriff's return gives this date as September 17th. If the attorneys made the agreement which defendant claims on September 17th, and before service of the writ of replevin and the defendant had properly pleaded the agreement, service of the writ in violation of the agreement would not have been permissible. But defendant cannot take advantage of the agreement for the reason that he did not specially plead it in his answer. The agreement was not put in issue. Evidence of the agreement came in without objection to its admissibility because not pleaded. Defendant's attorney claimed upon the argument that he had pleaded the agreement in the cross-complaint. He is mistaken in his reading of the cross-complaint; it does not allege the agreement he defended on. Moreover, a defense to an action cannot be supplied by the allegations of a cross-complaint. Had it been pleaded it would not have availed the defendant since the agreement as claimed by her was that the writ would be held in abeyance until September 20th and upon this date it was agreed by the attorneys, as claimed by her, that $60 was the amount due, for which defendant's attorney agreed to send a check. This he did not do until September 29th, which was not compliance with his agreement within a reasonable time. The denial of the motion to set aside the verdict was error.

The defense of the defendant rested wholly upon the testimony of Mr. Finkelstone, an attorney and partner in the firm of Lavery & Finkelstone, as to an agreement made by him with Mr. Morgan of the firm of attorneys representing the plaintiff and appearing in the trial. The plaintiff duly excepted to the ruling admitting this testimony. Mr. Finkelstone did not participate in the trial, Mr. Lavery conducting that. When the action was brought Lavery and Finkelstone entered an appearance for the defendant, signed and filed all pleadings in the firm name as well as the counter finding, but the brief was signed by Mr. Lavery alone. Mr. Finkelstone knew when his firm were retained to represent defendant that he would be a most important witness in support of defendant's defense, and both he and Mr. Lavery knew that his testimony would be indispensable for all of the six months or more the case was pending in court, and up to the time when the trial began. Mr. Morgan also knew after the cross-complaint was filed that he would be an indispensable witness for the plaintiff. Under these circumstances the Code of Ethics, § 21, 82 Conn. 703, and our repeated decisions, discountenanced either Mr. Finkelstone or Mr. Morgan in acting in the trial in the dual capacity of attorney and witness. Our rule is founded upon our belief that it is unfair to the client that his case should be presented through witnesses whom the trier will necessarily treat as interested, not only through the zeal of advocacy, but also through interest in the result of the trial, instead of as witnesses without self-interest or other zeal than that of the ordinary witness. It is also and primarily founded upon the obvious dictate of public policy, which requires that the profession of the law shall be practiced so as to avoid the bringing of distrust and suspicion upon its members who serve as witnesses in establishing the facts of a complaint or defense, and then as advocates in pressing home to the trier the truth of their statement as witnesses. Our court has always looked with great disfavor upon the giving of testimony by an attorney who is a participant in the trial of the cause in which he is a witness for the reason that we hold it to be against sound public policy and the integrity and welfare of the profession of the law that the attorney should be at one and the same time the advocate and material witness for his client. Our Code of Ethics recognizes that the attorney may be an advocate in a cause and at the same time a witness as to " merely formal matters." We recognize, too,...