Freccia v. Martin

• Citation: 163 Conn. 160,302 A.2d 280
• Court: Supreme Court of Connecticut
• Decision Date: 24 May 1972
• Parties: Frank J. FRECCIA et al. v. James MARTIN et al.

Page 280

302 A.2d 280

163 Conn. 160

Frank J. FRECCIA et al. v. James MARTIN et al.

Supreme Court of Connecticut.

May 24, 1972.

Sidney Vogel, norwalk, for appellants (defendants).

Howard C. Kaplan, Stamford, for appellees (plaintiffs).

Before HOUSE, C. J., and RYAN, SHAPIRO, LOISELLE and FITZGERALD, JJ.

RYAN, Associate Justice.

This is an action on a promissory note brought by the plaintiffs Frank J. Freccia and C. Emily Freccia against the defendants James Martin and Ramela Martin. The complaint alleges that the defendants signed and delivered to the Bank of Commerce of the city of New York their promissory note dated February 15, 1962, for $5940, payable in thirty-six equal consecutive five monthly installments of $165 commencing March 15, 1962; that the plaintiffs signed the note as accommodation makers for the defendants; that on failure of the defendants to make the required payments the bank made demand on the plaintiffs for payment; that on August 4, 1963, the bank, in consideration of the payment to it by the plaintiffs of the sum of $4638.79 representing the total balance due, assigned the note to the plaintiffs; and that the plaintiffs are now the owners and the holders of the note which had not been paid. The defendants' answer denied the material allegations of the complaint. Almost five years later, on July 12, 1968, the defendants moved to amend their answer by adding two special defenses and a counterclaim. The second special defense, which is the only one relevant to this appeal alleged that sometime after February 15, 1962, to secure the advance made by the bank, which the defendants believed had been made by the plaintiffs, the defendants deeded certain real property to the plaintiffs against payment of the obligation, and that a deed to the premises is still being held by the plaintiffs in place of a mortgage securing the indebtedness. The counterclaim incorporated the allegations of the second special defense and prayed for cancellation of the deed. The court permitted the defendants to amend their answer by adding the two special defenses, but refused to allow them to add the counterclaim.

The action was tried to the court, which on December 20, 1968, rendered judgment for the plaintiffs to recover or the defendants the sum of $4638.79 plus interest from August 14, 1963. From this judgment the defendants appealed to this court. Seven and one-half months later, on August 5, 1969, following the filing on June 10, 1969, of their draft finding, the defendants filed a motion to 'reopen' the judgment so that they might offer further evidence. The motion was heard at short calendar and was denied on November 13, 1969. Pursuant to the provisions of Practice Book § 639, the defendants included in their appeal to this court the ruling of the trial court on the motion to 'reopen' the judgment.

In their assignments of error, the defendants seek to have added to the finding certain facts which they claim are either admitted or undisputed. This court has the power to correct a finding where it fails to include admitted or undisputed facts. Practice Book § 627; Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. A fact, however, is not admitted or undisputed simply because it is uncontradicted. In the case at bar there was no failure on the part of the trial court to include any paragraphs of the draft finding which were admitted or undisputed. Walker v. Jankura, 162 Conn. 482, 484, 294 A.2d 536; Schurgast v. Schumann, 156 Conn. 471, 474, 242 A.2d 695.

The defendants also claim that certain paragraphs of the finding were found without evidence. This claim is without merit, since the challenged paragraphs of the finding pursued in the brief either are directly supported by the evidence or are based on inferences reasonably drawn from the evidence. Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79.

The finding, which is not subject to correction, discloses the following facts: The defendant James Martin is a licensed public accountant and has been engaged in the building business since 1958. In early 1962, Martin needed $5000 to finance his construction operations in the state of New York. He Discussed this matter with the plaintiffs, who suggested that he seek the aid of the Bank of Commerce in the city of New York. The plaintiff, Emily Freccia, had done business with that bank and recommended Martin to the bank. Martin applied for and received a loan from the Bank of Commerce. On February 15, 1962, the defendants executed a note for § 5940 payable to the Bank of Commerce and cosigned by the plaintiffs. The plaintiffs received no security for cosigning the note. The defendants paid five or six installments on the note, but then stopped making payments. Subsequently, the plaintiffs paid the note and received an assignment of the note from the Bank of Commerce. The plaintiffs demanded that the defendants reimburse them for the amount which they were compelled to pay, but the defendants failed to do so.

The court also found that on January 26, 1962, the defendant James Martin conveyed to the plaintiffs all his interest in a certain parcel of land situated in the town of Weston, Connecticut, for which the plaintiffs paid him $2000. This conveyance was accomplished by an unconditional quitclaim deed witnessed by an attorney who also took the acknowledgment on the deed as a commissioner of the Superior Court. In connection with the sale of the land, the defendant James Martin was represented by another attorney who was then associated with the law firm which represented the defendant in this case. The attorney who took the acknowledgment was acquainted with this transaction. The defendant Ramela Martin did not appear to testify at the trial, nor did either of the attorneys.

Based on these findings, the court concluded, inter alia, that the plaintiffs are the assignees and holders of the note for consideration, and that a balance of $4638.79 plus...