Lucas v. South Norwalk Trust Co.

• Decision Date: 04 March 1936
• Court: Connecticut Supreme Court
• Parties: LUCAS v. SOUTH NORWALK TRUST CO.

184 A. 157

121 Conn. 201

LUCAS v. SOUTH NORWALK TRUST CO.

Supreme Court of Errors of Connecticut.

March 4, 1936

Rehearing Denied April 21, 1936.

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by Chris Lucas against the South Norwalk Trust Company for damages for breach of contract and fraud. Verdict for plaintiff, which the court, upon motion, set aside, and plaintiff appeals.

Robert H. Gould, of Bridgeport, and Cramer C. Hegeman, of South Norwalk, for appellant.

Frederick Lovejoy, Jr., of South Norwalk, for appellee.

Argued before HINMAN, BANKS, AVERY, BROWN, and JENNINGS, JJ.

JENNINGS, Judge.

This action was brought in two counts. The first count alleged breach of contract in the failure of the defendant to hold certain checks for the plaintiff deposited with the defendant as the agent of the plaintiff. The second count claimed damages for alleged fraudulent misrepresentations made by the defendant to the plaintiff with reference to the same transaction. There was a general verdict for the plaintiff with answers to interrogatories. This the court set aside as against the evidence.

The assignments of error fall into two classes. Claimed error (1) in omitting from the finding facts claimed to have been proven by the plaintiff and in including facts in the finding not based on evidence; (2) in granting the motion to set aside the verdict.

The only purpose of a finding in this case is to test the propriety of a remark made in argument by one of the plaintiff's counsel to the effect that " we are now paying for bankers' mistakes." This, when considered in the setting portrayed by the portion of the finding providing such setting, even without the corrections sought by the appellant, did not exceed the permissible limits of argument. Archambeault v. Jamelle, 100 Conn. 690 693, 124 A. 820. No objection was made at the time. Lebas v. Patriotic Assurance Co., 106 Conn. 119, 122, 137 A. 241, and cases cited. The trial court in the charge emphatically admonished the jury to disregard it. The finding of facts which the plaintiff and defendant, respectively, offered evidence to prove and claimed to have proved, would be appropriate only for the purpose of presenting and testing claimed errors in the charge. Peterson v. Meehan, 116 Conn. 150, 163 A. 757. As no such errors are assigned, this portion of the finding was superfluous, but apparently was sought and included in the record through a misconception of the scope and effect of section 1663c of the General Statutes, Cum.Supp. 1935. It follows that there is no occasion to pass upon the assignments of error directed to the finding.

A careful review of the evidence discloses that the jury could reasonably have found the following facts: Chris Lucas and Gus Lucas were cousins and partners. Upon the dissolution of the partnership Gus owed Chris $2,750 evidenced by his promissory note for that sum. After the payment of $200 on the principal of this note while it was held by the defendant for collection, Chris and Gus became involved in litigation as to the manner of payment. As a result, Gus agreed to draw a check for $50 to the order of the plaintiff each month and have it certified by the defendant. This Gus did, starting November 1, 1930, and on October 1, 1933, thirty-six checks had been drawn. No checks were drawn after that date. In April, 1931, Chris authorized the defendant to accept and hold these checks for him and the defendant agreed to perform this service. About the first of each month, Chris inquired at the bank whether a check had been certified and whether it was there and was answered in the affirmative. At one time a number of checks were actually shown to him. Chris was a credible witness in the opinion of the two managing officers of the bank. In spite of this agreement and these assurances, the defendant did not hold the checks but without notice to or authorization from Chris cashed them for Gus. These facts are insufficient to prove fraud, and if the verdict is to stand, it must be on the allegations of the first count.

The court made a careful analysis of the testimony and came to the conclusion that that offered by the defendant was so cogent as to remove the questions at issue, " out of the realm of belief or disbelief," and the verdict was therefore set aside. In the memorandum of decision on this motion ten reasons are given for this action. The first reason refers to the claim of the defendant, of which there was substantial proof, that the checks were in fact not left with the defendant to accumulate but were taken from the defendant by Gus as certified. The breach of the agreement would exist even if this was the situation.

The third reason is principally concerned with the authority of the tellers to bind the bank. The first contact with the bank in this connection was when it held the note for collection. It was then in the possession of Wardell, the note teller, and payments were made to and credited by him. When the new...