Franks v. Lockwood

• Decision Date: 31 March 1959
• Court: Connecticut Supreme Court
• Parties: James B. FRANKS v. Ralph J. LOCKWOOD et al. Supreme Court of Errors of Connecticut

Page 215

150 A.2d 215

146 Conn. 273

James B. FRANKS v. Ralph J. LOCKWOOD et al.

Supreme Court of Errors of Connecticut.

March 31, 1959.

Robert R. Rosan, Milford, for appellants (named defendant et al.).

John Keogh, Jr., Norwalk, with whom was Walton Clark, Jr., Darien, for appellee (plaintiff).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

MURPHY, Associate Justice.

The plaintiff purchased four lots in a development in Norwalk from the defendant Lockwood on May 6, 1956. Within two weeks thereafter, the lots were stripped of topsoil and it was placed upon four other nearby lots which either were then owned by Lockwood or had been sold by him under agreements to grade them and cover them with topsoil. The actual stripping had been done by William Nagy, an employee of Nagy Brothers, Inc., excavation contractors. The latter was employed by The Donrich Corporation of Connecticut, to which we shall refer as Donrich, the building contractor for Lockwood in the construction of houses on the four lots to which the topsoil was removed. Donrich had contracted to do the grading and landscaping for Lockwood. The plaintiff brought suit against Lockwood, Donrich, Nagy, and Nagy Brothers, Inc. The latter two were defaulted. In a hearing in damages as to them and in the trial on the merits as to the other two defendants, the jury returned a general verdict of $5500 against all defendants. Only Lockwood and Donrich have appealed.

The complaint is in three counts. The first count, against William Nagy and Nagy Brothers, Inc., alleges the trespass by Nagy as the agent of Nagy Brothers, Inc., in taking the topsoil. This count is incorporated in both the second and the third counts, which are against all the defendants. The second count seeks recovery from Lockwood and Donrich under the doctrine of unjust enrichment, while in the third count it is alleged that Nagy and Nagy Brothers, Inc., acted in accordance with the instructions, and under the direction, of the other two defendants and their agents. Lockwood and Donrich, hereinafter called the defendants, filed a general denial and did not plead specially either in avoidance or otherwise, although upon the trial the fact that Nagy had removed some of the topsoil from the plaintiff's lots and placed it on those Lockwood was obligated to grade was not disputed.

The defendants have assigned as error the refusal of the trial court so set aside the verdict, its charging as it did in twenty-four paragraphs of the charge, its failure to include in the finding forty-seven paragraphs of the draft finding, and its refusal to charge in accordance with the defendants' request to charge. In effect, the defendants by the wholesale manner in which they allege error and by the arguments advanced in their brief seek to have this court retry the issues. That is not our function. Trenchard v. Trenchard, 141 Conn. 627, 631, 109 A.2d 250. The wholesale attack on the finding tends to cloud the real issue and cast doubt on the merits of the defendants' claims. Anderson v. C. E. Hall & Sons, Inc., 131 Conn. 232, 236, 38 A.2d 787. In a jury case it is rarely justified. Reboni v. Case Bros., Inc., 137 Conn. 501, 506, 78 A.2d 887. Furthermore, the forty-seven paragraphs of the draft finding which the defendants seek to have added to the finding concern the claims of proof of the plaintiff rather than those of the defendants. A litigant may not force into the claims of proof of his adversary factual matters which are objectionable to the latter and upon which he does not rely. Castaldo v. D'Eramo, 140 Conn. 88, 93, 98 A.2d 664. The defendants also filed a motion in the trial court to correct the finding, and they attempt to assign as error the denial of that motion. Since the adoption of the present practice, a motion to correct the finding has not been required. Maltbie, Conn.App.Proc., § 172. Where corrections in the finding are sought, the first step is to include in the assignment of errors paragraphs stating the corrections desired. Then after transcripts of the relevant evidence have been filed, the trial judge will make such corrections as he deems justified or note his refusal to do so. Id. § 154. The defendants are not entitled to any changes in the finding.

From the evidence presented at the trial, the jury could have found the following facts in addition to those stated in the forepart of this opinion. In 1953, Lockwood acquired a tract of land in Norwalk upon which a street called Columbine Lane was constructed. The property was subdivided into building lots and a map of the subdivision was filed in the land records. The plaintiff purchased fourteen of these lots from Lockwood on May 6, 1956, for $56,000. Prior to May, 1956, Lockwood had contracted with four persons--Clark, Marone, Kalner and French--for the construction of houses on lots which were to be conveyed to them when the houses were completed. On May 15, 1956, these houses were substantially completed and all but Marone's had been deeded. In each of the contracts, Lockwood was obligated to grade the property and cover it with topsoil. The actual construction of the houses was done by Donrich under a verbal contract with Lockwood. Donrich was organized in 1955 by Lockwood and William H. Perlman. Lockwood owned 50 per cent of the stock of the corporation. The other half was owned by Perlman and his wife. The three were the officers and directors of Donrich. Under the oral agreement, the corporation was to do the grading and landscaping of the four properties. James Roberts was the construction superintendent for the corporation on these jobs. He engaged Nagy Brothers, Inc., to do excavating, bring in fill, and grade the properties. On or about May 14, 1956, when the topsoil which had been accumulated nearby was exhausted, Roberts directed William Nagy to take topsoil from four of the plaintiff's lots and to spread it about the four properties in question. This was done between May 18 and 21. Roberts claimed that he did not know that Lockwood had sold the lots to the plaintiff. Nagy estimated that he removed between 250 and 300 cubic yards of...