Levy v. Bromberg

• Court: Connecticut Supreme Court
• Writing for the Court: WHEELER, C.J.
• Citation: Levy v. Bromberg, 108 Conn. 202, 142 A. 836 (Conn. 1928)
• Decision Date: 16 July 1928
• Parties: LEVY v. BROMBERG.

142 A. 836

108 Conn. 202

LEVY v. BROMBERG.

Supreme Court of Errors of Connecticut.

July 16, 1928

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Action by Nathan M. Levy, trustee in bankruptey of the estate of Ershler Bros., Inc., against Harry Bromberg, to recover for merchandise sold to defendant. Verdict for defendant, which the court, on plaintiff's motion, refused to set aside. From the denial of a motion to set aside verdict and judgment for defendant, plaintiff appeals. Error, and motion to set aside verdict granted.

Refusal to set aside verdict for defendant, which was against evidence, in trustee's action for balance due for merchandise, held error.

Herman J. Weisman, of Waterbury, and Arthur Klein, of New Haven, for appellant.

John H. Cassidy and Alfred L. Finklestein, both of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

The plaintiff, trustee in bankruptcy of the estate of Ershler Bros., Inc., sues to recover the balance due, $2,499.67, for merchandise amounting to $3,099.67, upon which $600 was paid on May 11, 1927, sold and delivered to the defendant between May 2 and May 14, 1927. There is no question upon the evidence that this merchandise was sold and delivered to defendant at the specified price, and that the balance of $2,499.67 is due, unless the defendant had paid for a part of this, or was entitled to certain deductions and offsets. The defendant's defenses are that upon the account, from May 2 to May 7, amounting to $16,644.61, Ershler Bros., Inc., had agreed to deductions of $441.61, to which defendant was justly entitled, and had paid him the balance in cash on that date, and that upon the balance of the account, $1,455.06 defendant was justly entitled to deductions of $249.50, which Ershler Bros., Inc., had agreed to, leaving a balance due of $1,205.56, which was offset by an indebtedness to him of $1,300, evidenced by three unpaid checks, one dated November 22, 1926, for $300, and two checks, each for $500, and dated April 30, 1927. The trial court denied the motion to set aside the verdict, for the reasons set forth in its memorandum of decision, which we quote:

" Had this case been tried to the court, I would have reached a different conclusion than the jury did, for to me it was clear that the defendant told a story upon the witness stand that not only was unlikely, but was obviously untrue. By such story and by the verdict of the jury, who saw fit to believe the defendant instead of the plaintiff's witnesses, as they had a right to, the defendant has been enriched at the expense of the creditors of the bankrupt estate in the sum of about $2,500. Unfortunately, the issues of fact having been decided by the jury in favor of the defendant, the court is unable to set aside the verdict, and which, had it been otherwise, would have enabled the

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