Lombardi v. Laudati

• Court: Connecticut Supreme Court
• Writing for the Court: JENNINGS, Judge.
• Citation: Lombardi v. Laudati, 124 Conn. 569, 200 A. 1019 (Conn. 1938)
• Decision Date: 15 July 1938
• Parties: LOMBARDI v. LAUDATI.

200 A. 1019

124 Conn. 569

LOMBARDI v. LAUDATI.

Supreme Court of Errors of Connecticut.

July 15, 1938

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Action for specific performance of a bond for a deed and for damages by Ciacomo Lombardi against Andrea Laudati, which was brought to the superior court in New Haven county, where the legal issues were tried to the jury and found for the plaintiff and the court thereafter rendered judgment of specific performance, but not for damages, from which judgment both parties appeal.

No error.

Francis McDonald and Pasquale DeCicco, both of Waterbury, for defendant.

Michael V. Blansfield and Harry M. Albert, both of Waterbury for plaintiff.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

JENNINGS, Judge.

This case was claimed for the jury by the defendant. On motion of the plaintiff, legal issues were framed and were tried to the jury on interrogatories, all other issues being tried to the court. No objection to the form of the interrogatories was raised at any time. Verdict and judgment followed for the plaintiff. Two findings were made, one in the jury and one in the court case. An examination of the files discloses that the finding upon the defendant's appeal was not a finding of facts which the trial court found proven upon the trial of the issues it heard without a jury but of the facts the respective parties claimed to have proved; it was adapted to raise only questions having to do with the trial to the jury. The other finding was upon the plaintiff's appeal and was concerned solely with a claim he made to recover damages for the use of the property from the time the defendant refused to perform. The defendant cannot raise any of his claims of error with reference to the trial of the issues by the court without a jury, because their presentation would require a finding of facts which the court found proven at the trial and the finding of facts upon the plaintiff's appeal was not prepared to present, and does not properly present, such claims. Consideration of the defendant's appeal is necessarily confined to errors he claims to have been committed upon the trial to the jury.

The court has discretion to submit legal issues in an equitable action to a jury. General Statutes, § 5625; Bisnovich v. British America Assurance Co., 100 Conn. 240, 248, 123 A. 339. Our experience with records on appeal in cases where these issues have been separately tried indicates that this discretion should be sparingly exercised. The difficulty of differentiating between the two cases and of providing adequate treating for each in the record presents serious practical difficulties. The case now being considered is an admirable illustration of the confusion that results. Although the trial judge did everything possible to keep the record straight, the actual status of the appeals can only be determined by the most meticulous analysis of the original file.

The complaint sought specific performance of the following written agreement:

‘ Feb. 5, 1937

‘ Waterbury, Conn.

‘ I Andrea Laudate agree to sell to Giacomo Lombardi the premises located at 59 Congress Av. Waterbury Conn. This includes the bakery shop and all its equipment, garages located in the rear of the bakery shop and the land which is also in rear of bakery shop. I agree to sell all that is mentioned above for the total sum of $3,100 three thousand one hundred dollars with a deposit of $200.00 two hundred dollars.

‘ [Signed] Andrea Laudate x (his mark)

‘ Witness Peter R. Augelli

‘ Witness Filiberto Capozzi’

The following statement is confined to those issues framed by the interrogatories: The plaintiff offered evidence and claimed to have proved the following facts: On February 5th, 1937, the defendant was the owner of the property described in the memorandum and was using it as a bakery and for living quarters. The defendant signed the agreement and thereafter delivered to the plaintiff maps and deeds from which a title search could be made and a deed drawn. One week later the refused to carry out the agreement and has continued to occupy the premises ever since. The plaintiff has been ready, willing and able to perform at all times.

The defendant offered evidence and claimed to have proved the following facts: The defendant is of Italian birth, sixty-seven years of age and illiterate. He speaks broken English and lives alone in the rear of the bakery. The plaintiff is related to the Capozzis, who operate a cleaning establishment on property adjoining that of the defendant. The relations between the defendant and the plaintiff were not pleasant. The Capozzis needed the defendant's property for expansion. The defendant was alone when the plaintiff and his friends came to see him on the morning in question. They gave him whisky and wine which caused him to become drowsy and unable to think clearly.

The interrogatories and the answers of the jury were as follows:

‘ 1. Was the document, plaintiff's Exhibit A, read to the defendant in language he could understand? Answer. Yes.

‘ 2. Did the defendant affix his mark to the document, plaintiff's Exhibit A? Answer. Yes.

‘ 3. Did the plaintiff pay the defendant $200? Answer. Yes.

‘ 4. Was the plaintiff ready, willing and able to pay the defendant $2900 in addition to the $200? Answer. Yes.

‘ 5. Was he prevented from so doing by the refusal of the defendant to proceed with the alleged contract? Answer. Yes.

‘ 6. If you find the defendant affixed his mark to the writing, plaintiff's Exhibit A, was he under the influence of intoxicating liquor to the extent that he was deprived of his reason and understanding? Answer. No.’

It is very apparent from the record that the principal issue tried was that covered by the last interrogatory, to wit, whether the defendant was under the influence of intoxicating liquor to the extent that he was deprived of his reason and understanding. By answering this question in the negative, the jury found this principal issue for the plaintiff. Bearing this in mind, particularly the form of the interrogatory and the fact that no objection was made thereto, we come now to a consideration of the assignments of error in the jury case.

The instructions to the jury complained of adequately covered such questions as were within the issues under consideration. The assignments directed to failure to charge relate to matters outside of those issues, such as equitable issues being tried by the court and questions not covered by the interrogatories in the form in which they were submitted. The chief complaint of the defendant is directed to the charge with reference to intoxication already referred to. The question asked was whether or not the defendant was under the influence of intoxicating liquor to the extent that he was deprived of his reason and understanding. In requesting a charge that if the plaintiff conspired to partially deprive the defendant of the use of his senses by plying him with liquor, the signature was illegally obtained, the defendant went outside of the question submitted to the jury. The instruction given was sufficient to enable the jury to answer the question put.

Error is also assigned because the court failed to charge that to prove himself ready, willing and able to perform, the plaintiff must satisfy the jury that he had $2900 in cash. That is not our rule. The defendant denied signing the agreement and by special defense alleged that if he did sign it, his signature was procured by fraud. He also...