Hotchkiss v. Di Vita

• Decision Date: 17 October 1925
• Citation: 130 A. 668,103 Conn. 436
• Court: Connecticut Supreme Court
• Parties: HOTCHKISS v. DI VITA ET AL.

130 A. 668

103 Conn. 436

HOTCHKISS v. DI VITA ET AL.

Supreme Court of Errors of Connecticut.

October 17, 1925

Appeal from Superior Court, Litchfield County; Allyn L. Brown Judge.

Action by Edward G. Hotchkiss against James Di Vita and others, to recover damages on account of payment for an automobile by plaintiff to defendants, title to which had failed. Judgment for plaintiff, and defendants appeal. No error.

Plaintiff alleged, among other things, that defendants by Angelo English, their servant and agent, had sold him a Dodge touring car for the sum of $175 in cash and in trade a Paige coupéat an agreed valuation of $750, making up $925, the purchase price of the Dodge car, which the plaintiff afterward sold for $1,050 to William M. Gillette that the car was a stolen car, the lawful property of David Lipsky, who subsequently took the same away from Gillette, to whom the plaintiff had been obliged to repay the amount paid him by Gillette. All of these allegations were put in issue by defendants' answer.

The trial court found that plaintiff had resided in Thomaston for the past 30 years engaged in the undertaking business, and since 1916 had conducted an automobile agency; that all of the defendants have resided in Winsted since prior to 1920 and have been engaged in buying and selling secondhand automobiles from about 1919. James Di Vita and Joseph Di Vita are both also known by the last name " Vita." English had lived in Winsted for 17 years before the trial, and James Vita owned and carried on a meat and grocery business during the same period; the same being conducted for the 4 years prior to 1920 at 418 Main street. Defendant English is the brother of James Vita's wife.

On September 1, 1921, and for a considerable time before and after, all three of the defendants, as proprietors, conducted the business above described under the trade-name of " Vita's Auto Exchange," or the " Vita Auto Exchange Company," and it was located at Winsted. On or about September 30, English, as agent for the auto exchange, duly authorized and acting within the course of his authority, sold to the plaintiff a 1921 Dodge touring car for $175 plus a Paige coupéin exchange, at the agreed price of $750, or a total agreed price of $925. Before the sale was completed, and in response to the plaintiff's offer aggregating $925 as aforesaid, which was a lower figure than had been demanded by him, English told the plaintiff that before he could accept the offer he would have to call his partner on the telephone, and he thereupon called " No. 5 Winsted," which is as much as the plaintiff heard. No. 5 Winsted at that time was the telephone listed under the name of J. Vita, and was located in his place of business at 410 Main street, Winsted. Subsequent to English's talk over the telephone upon this call, the plaintiff's offer was accepted through him, and the markers X-711 which were on the Dodge car were transferred to the Paige car by English, the Dodge was left, and the Paige driven away by English. These markers had been issued to James Vita, 410 Main street, Winsted, under the dealer's registration number X-711 by the motor vehicle department for the year 1921, pursuant to statute. License No. X-711 was paid for by the three defendants and used by all of them on the cars in their business, known as Vita's Auto Exchange, as they all well knew. The agreed price of the Dodge car was $925, as shown in an informal memorandum, which was paid by check for $175, given by the plaintiff to English as agent of the three defendants, and the Paige car at the agreed valuation of $750, delivered to English as agent of the three defendants. The check was subsequently indorsed by English and cashed at the First National Bank of Winsted. At the same time, the plaintiff gave to the defendant English, what was referred to by both in testimony in answer to questions by defendants' counsel as a " bill of sale" of the Paige car. Whether this was an informal memorandum, similar to that relating to the Dodge car which is in evidence, did not appear; English not offering the same in evidence.

On September 30, 1921, before opening negotiations for the sale of the Dodge car, English presented the plaintiff with a business card of Vita's Auto Exchange, Winsted. On another previous occasion, English, in negotiations concerning the sale of another car, had presented the plaintiff with a similar card, and to this extent the plaintiff knew him. The defendant Joseph Di Vita had printed a number of cards, reading " Vita's Auto Exchange, Winsted," and the same were used in the secondhand car business. On October 1, 1921, the plaintiff sold and delivered the Dodge car to William M. Gillette, of Waterbury, clerk of the district court of Waterbury, for a money consideration which Gillette paid to the plaintiff. The glass for the two forward doors was missing from the Dodge car at this time. In November, 1921, English told Gillette that he thought he could get the glass which was missing from a man over in Canaan, and, if he did not call Gillette about it the next morning, for him to call English's partner at the number which he wrote on a Vita Auto Exchange card and handed to him. The two cards given by English to the plaintiff, and the one given to Gillette, had become mislaid or lost before the trial.

On March 28, 1922, one David Lipsky, of Troy, N. Y., claimed this car as his property, and on March 28, 1922, the plaintiff, in response to a call from Gillette, went to Waterbury to the police station, where he found Gillette, William P. Keegan, chief inspector of the police department, detective bureau of Waterbury, a detective, and David Lipsky, of Troy, N. Y., who claimed that this Dodge car had been stolen from him, and he was the owner thereof. After the plaintiff and Gillette had examined certain documentary evidence of Lipsky as to the title of the car, and compared the same with the numbers on the Dodge car, they acceded and did surrender the car to Lipsky as a stolen car. During the trial, it was expressly conceded by counsel on behalf of all three defendants that the Dodge car in question was a stolen car, to which none of the defendants had title when the plaintiff bought it, and that Gillette, to whom the plaintiff had sold it, was justified in surrendering it to Lipsky, and further, on behalf of English, that judgment should be entered for the plaintiff against him. The plaintiff was compelled to and did reimburse Gillette for the loss of the Dodge car.

On or about March 30, 1922, the plaintiff called upon English at his residence in Winsted, and told him about the loss of the car, and that he would have to make good, and the plaintiff was immediately directed by English to go with him to 410 Main street, where the auto exchange business was carried on. There the plaintiff found the defendants James Vita and Joseph Vita, whom he had not known before, and there the three defendants conferred with the plaintiff, relative to a settlement for the loss to the plaintiff by reason of the failure of the title of the Dodge car, but no definite agreement was made. The defendants, however, said that they would come to the plaintiff's place in Thomaston that same night in further reference to the matter. All three defendants came to the plaintiff's place of business that night and conferred with the plaintiff further in reference to the matter, and said they would not do anything further toward settling for the loss until they had collected of the one from whom they had bought the car. James Vita and Joseph Vita at no time disclaimed to the plaintiff having any interest in the transaction of the Dodge car, although the plaintiff had told them he looked to them and English to remunerate him for his loss. The defendants have never paid the plaintiff anything or returned any consideration for the loss of the car, and the plaintiff has not been reimbursed for the loss by any one.

Vita's Auto Exchange consisted of James Vita, Joseph Vita, and Angelo English, doing business as a partnership. The office of Vita's Auto Exchange was located at 410 Main street, Winsted, the grocery and meat store of James Vita, where the books were kept, telephone messages relating to the business were received, and the conferences in the course of it were held, and the garage used by the defendants for their secondhand car business was located in the rear of this store. All of the defendants used telephone No. 5 Winsted in the conduct of the auto business. In a conditional bill of sale from Vita's Auto Exchange & Co. to Isabel C. Stewart, which is made a part of the finding, English signed the same as agent as follows: " Vita's Auto Exchange Company, by Angelo English." Angelo English acted at all times in this transaction with the plaintiff as agent of Vita's Auto Exchange. The defendant James Vita alone of the three defendants is financially responsible. The memorandum of decision is made a part of the finding, as are also certain exhibits.

The following conclusion was reached by the court from the facts found: That all of the defendants were parties--and rendered judgment for plaintiff against all.

The following ruling was made on the trial: Upon the trial, the plaintiff testified, without objection, that the defendant English had said to him that, before concluding a bargain he (English) must call up his partner by telephone, and also that English had told him to call up, and thereupon proceeded to call up the Di Vita telephone number, and also that English had told Gillette to call up his partner as to some glass missing from the door of the Dodge car, giving him the Di Vita telephone number. Defendants moved to strike out this testimony, and the court denied the motion. This denial...