Freda v. Smith

• Decision Date: 01 October 1954
• Citation: 142 Conn. 126,111 A.2d 679
• Court: Connecticut Supreme Court
• Parties: Emll FREDA v. Walter H. SMITH, Executor (ESTATE of George H. WOODWARD). Supreme Court of Errors of Connecticut

Page 679

111 A.2d 679

142 Conn. 126

Emll FREDA v. Walter H. SMITH, Executor (ESTATE of George H. WOODWARD).

Supreme Court of Errors of Connecticut.

Oct. Term, 1954.

Feb. 8, 1955.

William L. Beers and Charles M. Lyman, New Haven, on the brief, Clarence W. Bronson, New Haven, and John N. Reynolds, New Haven, for appellant-appellee (defendant).

John H. Filer, New Haven, on the brief, John B. Grant and Donald F. Keefe, New Haven, of appellant-appellee (plaintiff).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

DALY, Associate Justice.

The finding is not subject to material correction. The Orange Hills Country Club, Inc., hereinafter called the corporation, was the owner of a sizable tract of land in Orange on which a golf course and a clubhouse were located. The course was open to any member of the public who wished to play and who paid a greens fee. There was also conducted on the property a concession for the sale of golfing equipment, soft drinks and refreshments. The realty was incumbered by a first mortgage to the Union and New Haven Trust Company in the principal amount of $12,000 and by a second mortgage in the principal sum of $9,000 to George H. Woodward, the defendant's decedent, and two other men. In 1937, the first mortgage was in default and taxes were unpaid. The plaintiff, as an officer of the bank, became a member of a committee composed of Walter H. Smith and other owners of stock in the corporation. Their purpose was to devise a method of working out the default. The decedent, who at the time was the president of the corporation, was not a member of the committee. He could neither read nor write and was incapable of handling the corporate business and financial affairs.

In 1941, the default having been cured, the plaintiff withdrew from the committee and ceased to act for the bank in supervising the business affairs of the corporation. The interest on the second mortgage had then been in default for five years. Early in 1942, the decedent, who was operating the concession, became the owner of twenty-two or twenty-three of the twenty-five outstanding shares of stock in the corporation. By foreclosure of the second mortgage, he became the owner of the property in June, 1945. He died on January 26, 1948. An administrator of his estate was appointed and served until November 8, 1948, when a will, dated February 16, 1933, was discovered. It was admitted to probate and Walter H. Smith qualified as executor. The inventory of the estate, of the total value of $37,796.18, consisted of cash, various items of personalty, and realty appraised at $40,550, less an outstanding mortgage of $11,000.

On July 27, 1950, the estate having been represented as insolvent, commissioners were appointed and the plaintiff's claim, among others, was delivered by the executor to them.

In his claim, the plaintiff stated that between March, 1942, and January 26, 1948, he rendered valuable business services to the decedent; that the decedent sought his assistance and advice in acquiring full ownership of the second mortgage on the real estate of the corporation; that with his assistance and advice, the decedent began purchasing golf course equipment; that they agreed orally that the plaintiff would take care of the business matters and that the decedent would attend to the actual operation and maintenance of the course; that their agreement provided that after the business had reached the point where it was profitable each would receive one-half of the net earnings and that in the event of a sale of the property, both real and personal, one-half of the net proceeds would be paid to each of them; that the decedent agreed to provide by will for the sale of the real and personal property and for the payment to the plaintiff of one-half of the net proceeds; that pursuant to the agreement the decedent, by foreclosure, took over the full possession and ownership of the property on June 21, 1945, and thereafter, until his death, operated the golf course; that, in connection therewith, the plaintiff advised him on every business transaction and handled all of the business details; and that, although the plaintiff had never received any payment for the services rendered, the decedent had failed to provide by will for the plaintiff as agreed. In and by his claim the plaintiff sought one-half of the value of the golf course real and personal property.

On November 19, 1951, the report of the commissioners, disallowing the plaintiff's claim was accepted by the Probate Court, and the plaintiff appealed to the Superior Court, where he filed a statement consisting of four counts. In the first he alleged an express contract substantially the same as that stated in the claim disallowed by the commissioners. In the second, it was alleged that by the decedent's failure to execute a will providing for the sale of the property and payment to the plaintiff of one-half of the proceeds the decedent wrongfully appropriated the property to himself and his estate. In the third, an accounting was requested. The fourth court was based on quantum meruit. The trial court found the issues for the plaintiff on the fourth count and for the defendant executor on the other three. The defendant and the plaintiff have appealed from the judgment.

In his second special defense, the defendant alleged that the plaintiff had due legal notice of the hearings held by the commissioners on the insolvent estate of the decedent, that he was given an opportunity to be heard by them but that he at no time presented evidence to the commissioners. The plaintiff demurred to this defense on the ground that the only duty which he owed to the commissioners was to exhibit his claim and that their report showed that this was done. The demurrer was sustained, and the first question for our consideration is whether the court erred in this respect.

The defendant maintains that the plaintiff, by his failure to present evidence, did not exhibit his claim to the commissioners as required by § 7004 of the General Statutes. ¹ The word 'exhibit' is not ambiguous. It means '[t]o display; as: * * * To present for consideration.' Webster's New International Dictionary (2d Ed.); see Diehl v. Becker, 227 N.Y. 318, 323, 125 N.E. 533. The plaintiff did exhibit his claim to the commissioners. The statute did not require him to offer proof of his claim to them. The court did not err in sustaining the demurrer. The appeal nullified the commissioners' decision as completely as if it had never been rendered, imposed upon the plaintiff the necessity of proving his claim in the Superior Court and threw upon that court the task of hearing the matter de novo. Silverstone v. Lillie, 141 Conn. 104, 108, 103 A.2d 915; Cothren's Appeal, 59 Conn. 545, 548, 22 A. 297.

The defendant maintains that the claim of the plaintiff which was disallowed by the commissioners does not support a judgment in quantum meruit. He contends that, since that original claim was based upon an express contract, the plaintiff changed his ground of action in alleging, in the fourth count, a claim resting upon an implied contract. In the claim which the plaintiff first presented to the administrator of the decedent's estate, he set forth facts which he asserted entitled him to recover. As he relied upon the same facts in the Superior Court, he could recover on the theory which justified a recovery on those facts, whether that theory was express contract or implied contract. Duvall v. Birden, 124 Conn. 43, 48, 198 A. 255; see Practice Book, § 33.

The trial court found that the plaintiff rendered his services to the decedent in the expectation that he would be compensated for them and that the decedent by accepting them impliedly agreed to pay the plaintiff the reasonable value of them. The defendant in his assignment of errors, states that the court erred in so finding. He has not attacked the subordinate facts from which these conclusions were drawn. The plaintiff had been an officer of banks in New Haven for thirty-one years and at the time of the decedent's death was an assistant vice president of the Union and New Haven Trust Company, receiving an annual salary of $7,000. The court found that he had spent about 2,000 hours in rendering services to the decedent in connection with his business affairs and had, besides, performed certain special services for him.

Between April 5, 1943, and December 31, 1945, when the corporation ceased to exist, the conduct of the golf course business was carried on by the decedent and the plaintiff nominally as a corporate enterprise, but in fact it was a personal undertaking. The decedent continuously consulted with the plaintiff, obtaining business advice. The plaintiff worked as the supervisor and adviser in the business management and operation of the club. He assumed the duties of keeping the club checkbook, making bank deposits and social security reports, compiling pay rolls, arranging for accountants to prepare income tax returns, furnishing figures for those returns, and receiving and examining the reports which the accountants made to the decedent. The plaintiff arranged for seasonal loans and for the purchase of supplies. He handled all correspondence, hired and discharged employees and secured necessary insurance coverage. In addition, he arranged for the building of a new road, for the installing of a pumping system, for the improvement of greens and for acquiring a number of new items of equipment.

No conclusion of the trial court can be disturbed by this court unless it appears either that it involves the application of some erroneous rule of law material to the case or that it was unreasonably drawn from the subordinate facts found. Johnson v. Shattuck, 125 Conn. 60, 62, 3 A.2d 229; Davis v. Margolis, 107 Conn. 417, 422, 140 A. 823. In view of the subordinate facts found, we cannot say that the trial court erred in concluding that the...