Lampesis v. Comolli
| Decision Date | 08 May 1958 |
| Citation | 140 A.2d 561,101 N.H. 279 |
| Parties | James T. LAMPESIS v. Joseph F. COMOLLI. |
| Court | New Hampshire Supreme Court |
Fisher, Parsons & Moran, Dover, Harold D. Moran, Dover, orally, for plaintiff.
Orr & Reno, Concord, Robert H. Reno, Concord, orally, for defendant.
The defendant first argues that the evidence was insufficient to support the action of deceit and therefore, this being the only count submitted to the jury, judgment should be entered in his favor. To determine the validity of this claim it is necessary to examine the facts in some detail. Taking the evidence most favorable to the plaintiff, as the law requires us to do (Chase v. Draper Corporation, 95 N.H. 483, 66 A.2d 588), it appears the jury could find, among others, the following facts.
The defendant, Joseph F. Comolli, was the president and treasurer of New Hampshire Explosives & Machinery Company, Inc. and also the owner of practically its entire stock. As the New Hampshire representative for the Unit Crane and Shovel Corporation, he approached the plaintiff in the spring of 1950 and on May 3 of that year sold him a Unit shovel and crane powered by a diesel engine for $10,793. At that time the plaintiff was without funds to make an initial deposit of $200. The defendant loaned the plaintiff this amount and a short time thereafter, upon the arrival of the shovel, he loaned him an additional $2,000 to finance the deal, taking as security an assignment from the Kidder Press of $1,000 which it owed the plaintiff and a $1,200 note signed by Doctor Lampesis, the plaintiff's brother.
Thereafter, while the shovel remained in the plaintiff's possession and until it was repossessed on August 1, 1951, he was in pretty constant financial difficulties and was generally behind in his monthly installment payments of $443.97. The United Corporation found it necessary to send a special representative to him in the fall of 1950 in an endeavor to collect back payments. All these facts were known to the defendant who, at the Unit Corporation's request and as their New Hampshire representative, himself made numerous calls to Lampesis in an endeavor to get payments from him and even sent one of his employees to dun the plaintiff.
In the late winter of 1951, Lampesis' financial predicament became acute, until, as a result of negotiations commenced in February, he received on March 16, 1951, an offer from the City of Dover to purchase his shovel for $10,000, provided it were free of encumbrances and minor repairs were made. This offer was to expire in twenty days or on April 5. There were no encumbrances on it at that time, but in order to procure the materials to make the required repairs, Lampesis called on the defendant Comolli at his place of business in Concord around the latter part of March. At that time the plaintiff told the defendant that he was hardpressed and 'couldn't keep the payments going' so he was about to sell his shovel to the City of Dover. Thereupon, the defendant, who had in his sales talk told the plaintiff that he would be able to keep up his payments all right by earnings from the shovel, urged Lampesis not to sell, saying that he, Comolli, would get Lampesis $11,500 for the shovel, and for him to 'hang on to it.' The defendant also assured the plaintiff that he need not worry about his financial difficulties with the Unit Corporation because their attorney, Mr. Reno, was 'part of' Comolli's corporation and he, Comolli, could 'take care of that end of it.' The defendant also told Lampesis that he could get $1500 clear for him after payment of all his obligations including his $1,200 note to Comolli.
Prior to this conference between the two, it appeared that the City of Dover had on February 2, 1951, requested sealed bids on a shovel, to be received on or before February 19, and that the defendant had submitted on that date the low bid of $12,199. However, on March 1, the city had informed the defendant that all bids were being rejected. That their conference in late March, Comolli also urged Lampesis not to sell to Dover because he, Comollis, was low bidder on the proposed purchase of a new shovel by the city and would make a sale if the plaintiff did not. Comolli did not tell Lampesis that if he sold his new shovel to Dover, as he did on April 16, 1951, almost immediately after the proposed sale by the plaintiff to the city fell through, he would make a $1,500 commission as the record shows that he did.
The defendant never sold the plaintiff's shovel while it remained in the latter's possession. Although the defendant claimed that he persisted in his attempts to do so until the shovel was repossessed by the Unit Corporation on August 1, 1951, there was evidence that when, around the middle of June, a prospective purchaser, one Beane, approached the defendant, the latter told him, 'I am very, very sorry, it is out of my hands now.' When pressed on cross-examination for an explanation as to why he made no effort to sell Lampesis' shovel to Beane, Comolli replied only that it was because of 'one circumstance, which I'd rather not state.' The plaintiff, relying on the promise of the defendant, who he knew was in the business and sold 'that make of shovel,' to get him $11,500 for his shovel and to fend off the Unit Corporation until the sale could be made, kept his shovel until, due to his failure to make his installment payments, it was repossessed as previously stated. The defendant was aware that had Lampesis' sale to the city been consummated it would have saved him from the financial difficulties which soon overtook him.
Shortly after it was repossessed the defendant sold the shovel for the Unit Corporation for $10,200, realizing another commission of $510 and receiving an additional $600 on the balance due him from the plaintiff on account of the loan made at the time of the original purchase. Comolli admitted that he received a total of over $2,000 in commissions which he would not have obtained had the plaintiff sold his shovel to the city. The defendant conceded in cross-examination that Lampesis' shovel at $10,200 was 'priced very high' and that anything 'over $10,000 was a lot of money' for a secondhand machine.
As showing its desire to buy Lampesis' shovel, the City of Dover as late as April 10 wrote Lampesis' attorney that although the twenty days had expired on April 5, which were originally given the plaintiff under the March 16 offer to clear the title and to make repairs to his shovel, they would allow him three days more to do so and would still go through with the purchase. Commencing on April 5, three attachments were made on the shovel, which had previously been unencumbered, the first for...
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