Lakitsch v. Brand
| Decision Date | 27 July 1923 |
| Citation | 121 A. 865,99 Conn. 388 |
| Court | Connecticut Supreme Court |
| Parties | LAKITSCH v. BRAND ET UX. |
Appeal from Superior Court, Fairfield County; John W. Banks and Frank D. Haines, Judges.
Action by John Lakitsch, as executor of the estate of Theresa Zipperer, against Charles A. Brand and wife. Judgment for defendants, and plaintiff appeals. No error.
Action begun in June, 1921, on the common counts, and brought to the superior court in Fairfield county. A substituted complaint was filed, which the court (Haines, J.) struck out; thereupon an amended substituted complaint was filed by leave of court to which the defendants demurred, and the demurrer was sustained (Banks, J.). The plaintiff then moved for permission to file a second amended substituted complaint this motion the court (Banks, J.) denied. The plaintiff then by leave of court (Avery, J.), filed a third amended substituted complaint; to this the defendants demurred, and the court (Banks, J.) sustained the demurrer, and, no further pleadings having been filed, judgment was entered for the defendants, and plaintiff appealed. No error.
Nehemiah Candee and John T. Dwyer, both of South Norwalk, for appellant.
Jesse T. Dunbar, of Norwalk, for appellees.
The reasons of appeal allege as errors the rulings of the court as to the substituted complaint, the amended substituted complaint, and the second amended substituted complaint.
When each amended or substituted complaint was filed, it took the place of the complaint for which it was substituted, and that dropped out of the case.
" It remained on the files, and constituted part of the history of the cause, but could furnish no basis for a future judgment; nor could any previous ruling upon it be made a subject of appeal." Goodrich v. Stanton, 71 Conn. 424, 42 A. 74.
The voluntary filing of an amended or substituted complaint is a withdrawal of the preceding complaint, and the ruling of the court upon a demurrer to the preceding complaint is not reviewable. Boland v. O'Neil, Adm'r, 72 Conn. 220, 44 A. 15; Eames v. Mayo, 93 Conn. 479, 106 A. 825.
The only question, therefore, presented to us upon this appeal, is whether the court erred in sustaining the demurrer to the third amended substituted complaint.
This complaint alleged that the plaintiff's testate, Theresa Zipperer, her son, Fred Zipperer, and the defendants, on June 9, 1920, entered into a written agreement as parties of the second, third, and first parts respectively. Under this contract the defendants agreed to employ Mrs. Zipperer's son in their business at a weekly salary of $33, $8 of which they should retain for a defined purpose. In consideration thereof Mrs. Zipperer agreed to loan defendants for their business $5,000--$2,000 in cash, and the balance payable at her earliest convenience. And the parties agreed that when the $5,000 was all paid then the son should become a silent partner and have a one-third interest in the business and assets and receive one-third of the net profits, and the $5,000 shall be and become a part of the capital of the son in the business and the loan be canceled. In case the son shall desire to withdraw he shall give three months' notice in writing, and, beginning two years after such withdrawal, defendants shall repay the part of the $5,000 so paid in annual installments of $1,000. In case of incorporation the son shall have a corresponding interest in the company, and if he should withdraw he shall return his share of the capital stock to the defendants.
The plaintiff further alleged that, in pursuance of this contract, Fred Zipperer, the son of the plaintiff's testate, went into the employ of the defendants in their business at South Norwalk, and the testate loaned to the defendants $5,000; that on October 14, 1920, the defendants, in violation of the terms of the contract, " ordered and directed Fred Zipperer to sever his connection with the business and to cease rendering services for the defendants, and thereby prevented him from learning the business; that the defendants further violated the terms of the contract by selling out their entire business during the month of May, 1921, and moving away, and that the sum of $5,000 was used by the defendants for other purposes than conducting business at No. 21 North Main street, South Norwalk, Conn., which use was contrary to the purpose of and in violation of the express and implied terms of the contract; that no notice was given to the plaintiff's testate by the defendants of their intention to close said business nor of their intention to use said funds for purpose other than that of conducting their jewelry business, and no agreement was entered into by the plaintiff's testate to permit the defendants to use such funds for any other purpose than for the use in the said jewelry business conducted by the defendants at No. 21 North Main street, South Norwalk, Conn., and the plaintiff's testate did not at any time agree that the defendants might close out this business and move away, and the closing out of the business and moving away was in violation of the terms of the contract, because the funds of the plaintiff were thereby diverted to purposes not contemplated by the terms of the contract; that the defendants are therefore indebted to the plaintiff, as executor of the will of Theresa Zipperer, in the sum of $5,000, together with accrued interest.
The plaintiff as such executor has requested the defendants to pay said sum, but the defendants have wholly neglected and refused so to do.
The defendants demurred to the complaint on the following grounds:
(1) It purports to set up an action for money loaned under a written contract, which action is not now maintainable under the terms of the contract.
(2) No right of action had accrued by the terms of the contract.
(3) It does not appear on the facts set forth in the complaint that any of the acts of the defendants therein alleged were contrary to or in violation of the provisions of said contract.
(4) It does not appear that any notice was required by the terms of the contract to be given to the plaintiff's testate by the defendants of their intention to change their place of business or to close the business.
(5) It appears that the written contract is a partnership agreement, and it does not appear from the complaint that the partnership has ever been dissolved or terminated.
(6) The cause of action attempted to be set up in the complaint is not such as could properly be brought on the common counts, and none of the common counts is an appropriate general statement of such a cause of action.
The contract is made a part of the complaint, and the situation alleged in the complaint therefore involves the performance of the contract to the extent disclosed by the facts alleged considered in connection with the...
To continue reading
Request your trial
-
Antman v. Connecticut Light & Power Co.
... ... any previous [117 Conn. 235] ruling upon it be made a subject ... of appeal. Lakitsch v. Brand, 99 Conn. 388, 369, 121 ... A. 865; Wooley v. Williams, 105 Conn. 671, 675, 136 ... A. 583; Allen v. Chase, 81 Conn. 474, 475, 71 A ... ...
-
Rossignol v. Danbury School of Aeronautics, Inc.
...of Watertown, 136 Conn. 437, 438, 72 A.2d 235; Antman v. Connecticut Light & Power Co., 117 Conn. 230, 234, 167 A. 715; Lakitsch v. Brand, 99 Conn. 388, 389, 121 A. 865; Allen v. Chase, 81 Conn. 474, 475, 71 A. 367; Pettus v. Gault, 81 Conn. 415, 418, 71 A. 509; Arnold v. Kutinsky, 80 Conn.......
-
Connecticut Union of Tel. Workers, Inc. v. Southern New England Tel. Co.
...court is not concerned. Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 595, 96 A.2d 209; Lakitsch v. Brand, 99 Conn. 388, 393, 121 A. 865; Zaleski v. Clark, 44 Conn. 218, 223. The court was not in error in concluding that differences concerning a job evaluati......
-
Town of Milford v. O'Neil Bros., Inc.
...intention will be frustrated-that it is necessary to effectuate the intent of the parties as disclosed in the writing. Lakitsch v. Brand, 99 Conn. 388, 394; First Ecclesiastical Society v. Besse, Id. 616, 623. See, also, Rockwell v. New Departure Mfg. Co., 102 Id. 255. Obviously, the nature......