Laukaitis v. Klikna

• Decision Date: 08 April 1926
• Citation: 132 A. 913,104 Conn. 355
• Court: Connecticut Supreme Court
• Parties: LAUKAITIS v. KLIKNA.

132 A. 913

104 Conn. 355

LAUKAITIS v. KLIKNA.

Supreme Court of Errors of Connecticut.

April 8, 1926

Appeal from District Court of Waterbury; Walter D. Makepeace, Judge.

Action by Matthew Laukaitis against John F. Klikna for damages for obtaining title to certain real estate by fraudulent representations. Verdict and judgment for plaintiff, and defendant appeals. Error, and new trial ordered.

James M. Lynch and J. Gregory Lynch, both of Waterbury, for appellant.

Frederick M. Peasley and Clayton L. Klein, both of Waterbury for appellee.

HAINES, J.

In the trial court, the defendant moved to set aside the verdict and for a new trial, " because the same is against the evidence, the weight of the evidence, and excessive." The denial of this motion is made the first reason of appeal. A careful reading of the transcript of the evidence makes it clear that the jury reached its conclusion upon sharply conflicting testimony, of the weight and credibility of which it was the sole judge. On the issues which were presented to the jury, the verdict was not excessive. That the verdict was " against the weight of the evidence" is an improper assignment of error, as our decisions have repeatedly declared. Richard v. New York, N.H. & H. R. Co., 132 A. 451, 104 Conn. 229.

This motion to set aside the verdict was properly denied.

There are ten additional reasons of appeal, two of which relate to rulings upon evidence, and the remainder to the charge of the court. The plaintiff appellee filed a bill of exceptions because of another ruling upon evidence. The information furnished us as to the evidence which the court excluded, and to which the bill of exceptions is directed, is contained in two certificates of conviction for violation of the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.). The certificates do not state what the specific offenses were of which the accused was found guilty. In support of the bill, counsel in their brief say that under a statute of the state of Connecticut the accused " might have been imprisoned in the state prison." We are only concerned with the penalty prescribed by the federal statute under which he was in fact prosecuted. That the violation of the National Prohibition Act involves moral turpitude we have recently decided. Kurtz v. Farrington, 132 A. 540, 104 Conn. 257.

There was thus present one of the two necessary elements of an infamous crime, the conviction of which may, by our statute, be shown to affect the credit of a witness. Since we have no means of knowing the penalty prescribed by the national act for the offenses of which the accused was found guilty, the second element necessary to constitute it an infamous crime, viz. six months' imprisonment or more, was lacking. The bill of exceptions is not sustained.

Before taking up the reasons of appeal, it is important that we set clearly before us the issues presented by the pleadings. The original and the " amended" complaints show uncertainty on the part of the pleader, as to the exact basis of his action. The amended complaint is obviously a substitute for the one first filed. Its allegations, in effect, are: That the plaintiff was the owner of the real estate in question; that it was worth $15,000; that in July, 1920, the defendant bought it of the plaintiff for $14,800; that $3,300 of that price was to be paid by a note for that sum, made by one Zoock to the defendant, which note was to be secured by a conditional bill of sale of certain store fixtures and other personal property of Zoock; that for the purpose of inducing the plaintiff to accept the note, and such security, the defendant made certain false and fraudulent statements to the plaintiff as to the financial soundness of Zoock; that the plaintiff relied upon these representations and gave the defendant a deed of the real estate; that the note and bill of sale were in fact valueless, and within a month thereafter Zoock, on voluntary petition, was adjudicated a bankrupt; and, finally, that the $3,300 balance of the purchase price of the real estate has never been paid. Damages of $5,000 are claimed. The essential effect of the answer is an admission that the defendant bought the real estate of the plaintiff for $14,800 and received a deed therefor, and a denial of other allegations; and by a special defense, the defendant alleges payment in full for the real estate.

The sale of the property by the plaintiff to the defendant for $14,800, and the passing of the deed from the plaintiff to the defendant, are not in dispute. The payment of the rest of the purchase price, aside from the $3,300, is also conceded. It is also not in dispute that the defendant wished to pay this by a note which he had. This note was made by one Zoock, and payable to the defendant. The plaintiff was not satisfied at first that this note was good, and much of the evidence relates to this phase of the case. The complaint, in effect, alleges that the plaintiff was induced by the false and fraudulent statements of the defendant as to the financial soundness of Zoock, to accept this note or his bill of sale, one or both. It is this fraud that the defendant denies, and the issue thus raised characterizes the action as one for fraud and deceit. The defendant's special defense of payment might have been eliminated by means of a demurrer. The action was one for fraud, not for money had and received.

This then, is the gist of the case and suggests an early examination of the second reason of appeal, which urges the insufficiency of the charge concerning fraudulent representations, in that it did not make application of the law to the facts of the case adequate for...