Hartford-Connecticut Trust Co. v. Putnam Phalanx

• Decision Date: 22 April 1952
• Docket Number: HARTFORD-CONN
• Citation: 88 A.2d 393,138 Conn. 695
• Court: Connecticut Supreme Court
• Parties: TRUST CO. v. PUTNAM PHALANX et al. Supreme Court of Errors of Connecticut

Page 393

88 A.2d 393

138 Conn. 695

HARTFORD-CONN. TRUST CO. v. PUTNAM PHALANX et al.

Supreme Court of Errors of Connecticut.

April 22, 1952.

William J. Galvin, Jr., Hartford, with whom was Mark W. Levy, West Hartford, for the appellant (named defendant).

Bruce W. Manternach, Hartford, with whom was Pomeroy Day, Hartford, for the appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

O'SULLIVAN, Associate Justice.

The plaintiff trustee brought this action to foreclose a mortgage executed and delivered by The Putnam Phalanx, hereinafter called the defendant, to secure an issue of its bonds. The matter was referred to a state referee, who, after holding hearings thereon, filed his report. The defendant's remonstrance was overruled and judgment of foreclosure by sale was rendered by the court. The defendant has appealed.

The referee found the following facts: On April 29, 1926, the defendant executed a series of bonds, aggregating $35,000, in denominations of $1000, $500, and $100. They were payable to bearer and carried attached interest coupons. The bonds were to mature on March 1, 1949. To secure their payment, the defendant mortgaged to the plaintiff as trustee its property at 314 Washington Street, Hartford. Bonds totaling $27,300 were subsequently sold in varying amounts to various purchasers, most of whom were, at the time, members of the defendant organization. The remainder of the issue, amounting to $7700, was never sold.

In the latter part of $1932, those holding bonds aggregating more than two-thirds of the outstanding issue effectively waived in writing, as to all bonds, the payment of interest due on and subsequent to March 1, 1933. This action conformed to an express provision in the indenture. On March 7, 1933, the defendant voted not to pay any more interest and its secretary so advised the plaintiff. When the bonds matured, certain bondholders presented them to the plaintiff for collection.

The defendant has filed forty-two assignments of error. Most of them are obscure, some are unintelligible, many are repetitious, and several overlap, thus violating our rule concerning prolixity, specificity and repetition. Practice Book, 1951, § 408; Purdue v. Zoning Board of Appeals, 118 Conn. 174, 175, 171 A. 26. In spite of this, we have endeavored to segregate and classify those assignments which appear to represent the defendant's real contentions.

One of its main claims is that the bonds executed on April 29, 1926, constituted a substitution for others issued in 1924 and that the latter were secured by a mortgage different from that which the plaintiff seeks to foreclose. On the strength of this assertion, the defendant maintains that there is a fatal variance between the allegations of the complaint and the proof. The weakness of this claim is perfectly obvious. It lies in the defendant's rejection of facts found by the referee and in its insistence upon making use of facts which his report did not incorporate and which the court properly refused to add thereto. While there was submitted to the referee evidence that, prior to 1926, the defendant had bought a piece of property Chapel Street in Hartford and had issued bonds dated March 1, 1924, to finance the purchase price further evidence developed that this realty was thereafter sold at a profit, that the defendant then called and paid the outstanding 1924 bonds, and that the issue of 1926 was completely divorced from the Chapel Street transaction and was connected solely with the Washington Street property. The referee found on credible evidence that bonds to a total of $27,300 of the 1926 issue were sold at their face value and that their payment was secured by the mortgage described in the complaint. Questions of fact supported by credible evidence may not be disturbed on review. Lalley v. City of Bridgeport, 96 Conn. 501, 503, 114 A. 678. There is no variance between the allegations of the complaint and the proof.

The defendant further contends that the court erred in denying four of its motions. These were filed before the court acted on the remonstrance. The motions were (1) to recommit to the referee because of newly discovered evidence, (2) for a new trial because of newly discovered evidence, (3) for permission to add a more specific statement to the answer and to amend its prayers for relief on the cross complaint, and (4) for judgment on the pleadings. These motions cover thirteen printed pages of the record and their obscurity has us again at a disadvantage. We interpret the defendant's position respecting them to be this: The so-called newly discovered evidence consists of the defendant's own minute books and certain public records in the town clerk's office; these books and records, it is claimed, will establish that the bonds of 1926 were substituted for the issue of 1924; and, with this established, the proof would be at fatal variance with the complaint's allegations. The claim now under discussion ties in somewhat with the defendant's first contention, upon which we have commented, and it is unnecessary to repeat what has previously been said on this matter of variance. Nor do we determine whether a motion for a new trial was a motion which properly could be filed before the court acted on the remonstrance and report. It is sufficient to say that the present...