Healey v. Flammia

• Decision Date: 04 May 1921
• Citation: 96 Conn. 233,113 A. 449
• Court: Connecticut Supreme Court
• Parties: HEALEY v. FLAMMIA.

113 A. 449

96 Conn. 233

HEALEY v. FLAMMIA.

Supreme Court of Errors of Connecticut.

May 4, 1921

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by Patrick Healey, administrator, against Angelo Vito Flammia, to compel defendant to deliver to plaintiff personal property described in the complaint for damages and for equitable relief. Case tried to the court, and judgment rendered for plaintiff for $16,112 damages on the first second, and fourth counts, and for defendant on the third count, and defendant appeals. Error, and new trial ordered.

John H. Cassidy and Charles W. Bauby, both of Waterbury, for appellant.

Frank P. McEvoy and Patrick Healey, both of Waterbury, for appellee.

WHEELER, C.J.

The issues raised by counts one, two, and four were found in favor of the plaintiff, and form the subject of this appeal. The equitable issues under count three were found in favor of the defendant. Counts one and two are for the conversion of two separate nonnegotiable promissory notes, and these counts are alike in terms, and count four is for the conversion of certain rents. The counts for the conversion of the notes allege: (1) The execution and delivery of the notes at named dates to Frank Flammia, then in life, which were secured by mortgage; (2) the unlawful obtaining of the notes by the defendant, who is now in unlawful possession of them; (3) the death of Frank Flammia and the appointment and qualification of the plaintiff as administrator of his estate; and (4), the demand by the plaintiff from the defendant of said notes, and the refusal to deliver the same, and the conversion of them by the defendant.

The answers admit the execution and delivery of these notes to Frank Flammia, and that they are now in the possession of the defendant, but denies the demand, the refusal, and the conversion. And they further allege that the notes were executed and delivered to Frank Flammia, not to be his undivided property, but as that of the copartnership composed of the defendant and Frank Flammia, in business under the name of Frank Flammia & Co., and that Frank Flammia in his lifetime gave and delivered these notes to the defendant in part payment of his share of the partnership. And further, that the defendant owns and possesses the notes as surviving partner of the partnership. The replies join issue upon these affirmative allegations of the answers. The trial court held that, since the answers admit that the notes were executed and delivered to the plaintiff's intestate and that they are now in the defendant's possession, the only allegation of fact in these two counts which the plaintiff was bound to prove was that of the demand and refusal, as contained in paragraph five of the complaint.

This was an erroneous interpretation of these counts and an erroneous conception of the requirements of the cause of action attempted to be set forth in them. That cause of action was conversion. Conversion arises when there has been a-

" wrongful exercise of dominion over goods or chattels belonging to another who is entitled to their immediate possession." Metropolis Manufacturing Co. v Lynch, 68 Conn. 459, 470, 36 A. 832, 833; Semon v. Adams, 79 Conn. 81, 83, 63 A. 661.

" A cause of action arising from the unlawful exercise of dominion over property cannot be properly stated without a direct allegation of the material facts which constitute the unlawful act." Metropolis Manufacturing Co. v. Lynch, supra.

Not only must the facts constituting the unlawful act be alleged, but these must be proved before a recovery can be had. In these counts no facts are alleged which show, or tend to show, that the plaintiff is entitled to the immediate possession of these notes. The allegation that the notes were made in favor of, and delivered at their inception to, the plaintiff's intestate does not tend to show this. " Delivery" means " transfer of possession, actual or constructive, from one person to another." General Statutes, § 4358. Hence, the allegation of delivery meant a transfer of possession from Zusman to Frank Flammia of one note on April 25, 1917, and that from Albert to Frank Flammia on July 25, 1917. When the defendant came into possession of these notes the finding does not state. It might have been shortly after their delivery to Frank Flammia. The plaintiff administrator made demand upon the defendant on March 24, 1919, for these notes. So that the defendant may have had possession of one note some 23 months and of the other some 20 months prior to this action.

There can be no presumption of a right to the immediate possession of these notes after the notes came into the possession of the defendant. They may have passed out of the hands of the plaintiff and come into the hands of the defendant lawfully. Ownership or facts drawing with them the right to the immediate possession of these notes should have been alleged without these it does not appear that the defendant did unlawfully refuse to deliver these notes. To require this allegation is no hardship upon a plaintiff in conversion. The plaintiff fully understood the need of this allegation when he...