Kasicia v. Kostka, 7973.

• Decision Date: 25 June 1938
• Docket Number: No. 7973.,7973.
• Citation: 200 A. 476
• Parties: KASICIA et al. v. KOSTKA et al.
• Court: Rhode Island Supreme Court

200 A. 476

KASICIA et al.

v. KOSTKA et al.

No. 7973.

Supreme Court of Rhode Island.

June 25, 1938.

Exceptions from Superior Court, Providence and Bristol Counties.

Action on a note by John Kasicia and others against John Kostka and others, tried to the court without a jury. From a decision for the plaintiffs for $1,735.70, defendants bring exception.

Exception overruled and case remitted to the superior court for entry of judgment on the decision.

Max Winograd and William J. Carlos, both of Providence, for plaintiffs. Joseph G. Le Count, of Providence, and Joseph A. Hammill, of Bristol, for defendants.

CAPOTOSTO, Justice.

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This action in assumpsit against the makers of a promissory note was heard by a justice of the superior court sitting without a jury. The case is before us on the defendants' exceptions to a decision for the plaintiffs for $1,735.70, and to a ruling during the trial. This last exception being neither briefed nor argued is deemed to have been waived.

The note in evidence, which is typewritten on a sheet of paper with the watermark "A Coupon Bond", reads as follows: "Know All Men by These Presents, that we, John Koscka, and his wife, Aniela Koscka, having at various times previous to the date of these presents received the sum of one thousand fifteen dollars ($1,015), from John Kasicia, and his wife, Julia Kasicia, do hereby promise to pay to the said John and Julia Kasicia, with interest at 6%, the said sum of one thousand fifteen dollars ($1,015) upon the termination, successful or otherwise, of an action now pending in the Superior Court of Bristol County, Massachusetts, and begun by Joseph and Rose Boruk, husband and wife, against us. Witness our hands and seals at Fall River, Massachusetts this 11th day of August, 1925." The note bears the signature of "John Koscka", by mark, witnessed by "Joseph Andrews", and the signature of "Aniela Kostka", witnessed by "Martin Libuka."

An exemplified copy of the record of the superior court of Bristol County, Massachusetts, in the action of Joseph Boruk and Rose Boruk against Jan Kostka and Aniela Kostka, was put in evidence by the plaintiff. The final entry in such record is as follows: "On Sept. 3, A. D. 1932 the above entitled case was dismissed under Rule 62 of the Superior Court (1923) for failure to prosecute." The writ in the instant case is dated November 15, 1935.

The plaintiffs here rested their case after putting in evidence the note and the exemplified record of the Massachusetts court in the Boruk case. The defendants contended that the note was without consideration. Their testimony, in substance, is that the plaintiffs promised to give them $1,000 to adjust a pressing mortgage situation then in litigation; that they gave the note to Kasicia on his promise that he would give them the $1,000 the next day; that, when John Kostka called at Kasicia's house the next morning, the latter told him that he had changed his mind about giving him the money and that he had burned the note. There is testimony by some witnesses, who were related to or closely connected with the defendants, that John Kostka made these alleged statements concerning the burning of the note.

In cross examination John Kostka admitted that, in company with John Kasicia, he went to a Fall River attorney of his own choosing, whose name he could not recall, and that this attorney prepared the note at his request; that the attorney read the note to him and that he understood its contents before he signed it. He denied that one Joseph Andrews acted as interpreter for him and that he witnessed his signature to...